SCAN Settlement Agreement - State of California submitted or caused to be submitted claims for...
Transcript of SCAN Settlement Agreement - State of California submitted or caused to be submitted claims for...
SETTLEMENT AGREEMENT
This Settlement Agreement (Agreement) is entered into among the United States of
America acting through the United States Department of Justice and on behalf of the Office of
Inspector General (OIG-HHS) of the Department ofHealth and Human Services (HHS)
(collectively the United States) the State of California acting through the California
Department of Justice Office ofthe Attorney General Bureau of Medi-Cal Fraud and Elder
Abuse and through the California Department of Health Care Services (DHCS) (formerly
known as the California Department of Health Services prior to July 1 2007) (collectively
California) SCAN Health Plan (SCAN) Senior Care Action Network and Scan Group (the
SCAN Parties) and James M Swoben (Relator) (hereinafter collectively referred to as the
Parties) through their authorized representatives The United States and California are
hereinafter collectively referred to as the Governments
RECITALS
A SCAN is a Medicare Advantage organization that indirectly provides healthcare
services under the Medicare Program (Medicare) Title XVIII of the Social Security Act
42 USC sectsect 1395-1395kkk-l and a prepaid health plan under the Medicaid Program 42 USC
sectsect 1396-1396w-5 in California (Medi-Cal) From January 1 1985through December 31
2008 SCAN provided managed care benefits to Medicare and Medi-Cal beneficiaries who
became SCAN members and received capitated rate payments from Medicare and Medi-Cal for
those SCAN members
B The Governments contend that from January 1 1985 through December 31 2008
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SCAN submitted or caused to be submitted claims for payment to the Medicare and Medi-Cal
programs and the Governments paid SCAN on those claims
C The Governments contend that they have certain civil claims against SCAN
Specifically the Governments contend that they have claims against SCAN arising from the
conduct described below (hereinafter collectively referred to as the Covered Conduct) which
the Governments respectively allege
1 From on or about January 1 1985 through December 31 2008 SCAN
received capitated payments from Californias Medi-Cal program for SCANs Long Term Care
Certified (LTC) members The Governments respectively contend that these payments were
excessive andor violated applicable contractual statutory and regulatory requirements because
of the following alleged conduct
(a) The United States alleges From on or about January 1 1985 through
December 31 2008 the capitation rates set by the State of California for SCANs LTC members
were over the legal capitation rate allowed by California Welfare and Institutions Code
sect 1430l(a) California Admin Code Title 22 (22 CCR) sect 53321(b) and to the extent
applicable 22 CCRsect 53869(c) These over-the-legal-capitation amounts were set without
certain adjustments to the initial base population costs of in-facility nursing home services which
adjustments were needed to arrive at base costs for those services that took into account SCANs
LTC members actual utilization of in-facility nursing home services
(b) In addition the United States alleges From on or about July 1 2001
through December 31 2007 SCAN received from Californias Medi-Cal program through
Californias payment ofcapitated rates for SCANs LTC members certain additional amounts
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that were over the legal capitation rates allowed by California Welfare and Institutions Codesect
14301(a) 22 CCR sect 53321(b) and to the extent applicable 22 CCR sect 53869(c) These
additional over-the-legal-capitation amounts were set without certain adjustments to the base
costs of in-facility nursing home services which adjustments were needed to arrive at contractshy
adjusted base costs for those services that accounted for the fact that during those years SCANs
contracts with California required that SCAN dis-emoll each of its LTC members after that
member had stayed in a nursing home for an additional month after the month of entry (except
that froni July 1 2001 to July 31 2003 the stay without disemollment could be up to 100 days if
the member required skilled nursing care reimbursed by Medicare)
(c) California alleges From on or about January 1 1985 through
December 31 2008 notwithstanding the fact that DHCS knew that SCAN was receiving both
Medicare and Medi-Cal funds SCAN failed to provide contractually required financial
information to DHCS thereby impairing DHCS from revising capitation rates for SCAN
2 In addition the United States alleges For Medicare Part C payment years
2005 and 2006 SCAN retained coding consultants (the SCAN coding consultants) to conduct
retrospective blind reviews of the medical records underlying a number of specific encounters
(the Encounters) of SCAN members with severe illnesses and to identify diagnosis codes
applicable to such encounters Pursuant to the blind review protocol the SCAN coding
consultants were not provided with the diagnosis codes that the physicians for those members
had previously identified for the Encounters The SCAN coding consultants independently
identified applicable diagnosis codes for the Encounters SCAN provided to the United States
Centers for Medicare and Medicaid Services (CMS) as corrections the diagnosis codes that
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the SCAN coding consultants had identified and that the physicians had not identified As to the
diagnosis codes that the physicians had previously identified but that the SCAN coding
consultants had failed to identify SCAN failed to inform CMS that such codes might have
needed to be withdrawn from SCANs prior submissions to CMS for the Encounters Had SCAN
provided that information to CMS Medicare Part Cs capitated rate payments to SCAN based on
the Encounters allegedly would have been lower than theywere
D In addition on July 13 2009 pursuant to the qui tam provisions of the False
Claims Act 31 USC sect 3730(b) and the California False Claims Act California Government
Codesect 12652(c) James M Swoben (Relator) filed a qui tam action against the SCAN Parties
and other defendants in the United States District Court for the Central District of California
captioned United States ofAmerica and State ofCalifornia ex rei James M Swoben v Scan
Health Plan Senior Care Action Network Scan Group and [names ofremaining defendants
sealed CV 09-5013 JFW (the Civil Action)
E The SCAN Parties deny the allegations of the Governments and of Relator This
Settlement Agreement is neither an admission of liability by the SCAN Parties nor a concession
by the Governments that their claims are not well founded
To avoid the delay uncertainty inconvenience and expense of protracted litigation of the
foregoing claims and in consideration of the mutual promises and obligations ofthis Agreement
the Parties agree and covenant as follows
TERMS AND CONDITIONS
1 Payment to the Governments No later than ten (1 0) days after the Effective Date
of this Agreement SCAN shall pay to the Governments $32200000000 plus interest on that
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Amount at a rate of 1875 percent per year from May 1 2012 (handshake interest) (collectively
the Settlement Amount) as follows $13251282500 plus handshake interest to the United
States by electronic funds transfer pursuant to written instructions to be provided by the United
States Attorney for the Central District of California and $18948717500 plus handshake
interest to California pursuant to written instructions to be provided by the California Attorney
Generals Office
2 Relators Statutory Expenses Attorneys Fees and Costs The SCAN Parties and
Relator will resolve the issue of Relators expenses attorneys fees and costs if any under 31
USC sect 3730(d)(1) and California Government Codesect 12652(g)(8) separately from this
Agreement The SCAN Parties and Relator and his heirs successors attorneys agents and
assigns agree that they each retain all of their rights on that issue and that no agreements
concerning that issue have been reached to date
3 Dismissal of the Civil Action Upon receipt of the payment described in
Paragraph 1 above the Governments and Relator shall promptly sign a Notice of Dismissal of
All Claims Against Defendants SCAN Health Plan Senior Care Action Network and SCAN
Group Pursuant to Settlement Agreement Consents ofthe United States and State of California
Attorneys General Thereto and [Proposed] Order Thereon (Notice of Dismissal) in the form
attached hereto as Exhibit 1 The United States and California shall also sign a notice of their
decision to intervene in the Civil Action except as to the Ninth Claim for Relief of the Third
Amended Complaint as to which the United States shall decline to intervene The United States
shall then promptly file andor lodge with the Court adjudicating the Civil Action the aforesaid
signed notice of intervention and declination and the aforesaid signed Notice of Dismissal The
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Parties agree that if the two said documents are filed concurrently the said Notice of Dismissal
shall be deemed to have been filed after the said notice of intervention and declination For
purposes of any action claim proceeding or dispute other than the Civil Action brought or
asserted by the United States or on behalf of the United States by any qui tam relator other than
Relator SCAN Senior Care Action Network and Scan Group (1) construe the Seventh Claim
for Relief of the Second Amended Complaint in the Civil Action to include solely paragraphs 84
through 87 thereof inclusive and (2) construe the Seventh Claim for Relief of the Third
Amended Complaint in the Civil Action to include solely paragraphs 88 through 91 thereof
inclusive
4 The Governments Releases of the SCAN Parties
a Release of the SCAN Parties by the United States Subject to the
exceptions in Paragraph 6 (concerning excluded claims) below and conditioned upon SCANs
full payment of the Settlement Amount the United States releases the SCAN Parties from any
civil or administrative monetary claim the United States has for the Covered Conduct under the
False Claims Act 31 USC sect 3729-3733 both pre-amendment and as amended by the Fraud
Enforcement and Recovery Act of2009 Pub L 111-21 123 Stat 1617 (2009) the Civil
Monetary Penalties Law 42 USC sect 1320a-7a the Program Fraud Civil Remedies Act 31
USC sectsect 3801-3812 or the common law theories of breach of contract recoupment unlawful
payment legally unauthorized payment payment by mistake unjust enrichment and fraud
b Release of the SCAN Parties by California Subject to the exceptions in
Paragraph 6 (concerning excluded claims) below and conditioned upon SCANs full payment of
the Settlement Amount California releases the SCAN Parties from any civil or administrative
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monetary cl~im California has for the Covered Conduct under the California False Claims Act
Cal Government Codesectsect 12650-12656 or the common law theories of breach of contract
recoupment unlawful payment legally unauthorized payment payment by mistake unjust
enrichment and fraud
5 Reservation of Rights to Administrative Actions
a OIG-HHS Reservation of Rights OIG-HHS expressly reserves all rights
to institute to direct or to maintain any administrative action seeking exclusion against the
SCAN Parties andor their respective officers directors and employees from Medicare
Medicaid or other Federal health care programs as defined in 42 USC sect 1320a-7b(f) under 42
USC sect 1320a-7(a) (mandatory exclusion) or 42 USC sect 1320a-7(b) (permissive exclusion)
b Release of Administrative Actions by California In consideration of the
obligations of the SCAN Parties in this Agreement and SCANs full payment of the Settlement
Amount California agrees to release the SCAN Parties from and to refrain from instituting
directing or maintaining against the SCAN Parties any administrative action seeking permissive
exclusion from Medi-Cal for the Covered Conduct California expressly reserves all rights to
comply with any mandatory statutory obligations to suspend or exclude the SCAN Parties from
Medi-Cal or any other program based upon the Covered Conduct
6 Exceptions to the Governments Releases Notwithstanding the releases given in
this Agreement or any other term of this Agreement the following claims of the Governments
are specifically reserved and are not released
a Any liability arising under Title 26 US Code (Internal Revenue Code) or
under Californias Taxation and Revenue Code
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b Any criminal liability
c Except as explicitly stated in this Agreement any administrative liability
including mandatory exclusion from Federal or state health care programs
d Any liability to the United States (or its agencies) or to California (or its
agencies) for any conduct other than (1) the Covered Conduct and (2) the conduct alleged as to
the SCAN Parties in Relators Complaints in the Civil Action subject to the agreed construction
set forth in Paragraph 3 of this Agreement of the Seventh Claim for Relief in the Second and
Third Amended Complaints and subject to subparagraph (e) below
e Except as set forth in Paragraph C2 of this Agreement any liability
arising under the Ninth Claim for Relief in the Third Amended Complaint
f Any liability based upon obligations created by this Agreement
g Any liability for express or implied warranty claims or other claims for
defective or deficient products or services including quality of goods and services
h Any liability for failure to deliver goods or services due
1 Any liability for personal injury or property damage or for other
consequential damages arising from the Covered Conduct
J Any liability of individuals
k Any liability for SCANs receipt of payments from Medi-Cal for services
to beneficiaries who were receiving similar services from counties through the In-Home Support
Services Program (IHSS)
1 Any liability for SCANs certifications of required nursing facility levels of
care made on or after January 1 2009
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7 Release of the SCAN Parties by Relator In consideration of the obligations of the
SCAN Parties in this Agreement~ conditioned upon the full payment of the Settlement Amount
Relator for himself and for his heirs successors attorneys agents and assigns agrees to
generally release acquit waive and forever discharge the SCAN Parties and all the current and
former officers and directors employees agents attorneys owners and shareholders of the
SCAN Parties from any and all rights claims expenses debts liabilities demands obligations
costs damages injuries actions and causes of action of every nature whether known or
unknown suspected or unsuspected in law or in equity from the beginning of the world to the
day of these presents including but not limited to those he advanced or could have advanced in
the Civil Action or otherwise under the False Claims Act 31 USC sectsect 3729-3733 for expenses
or attorneys fees and costs under 31 USC sect 3730(h) or under 31 USC sect 3730(h) for
employment decisions by the SCAN Parties under the California False Claims Act Cal
Government Codesectsect 12650-12656 andor other statutory or common law doctrines of payment
by mistake unjust enrichment breach of contract fraud or the like except however that
Relator does not release the aforesaid persons and entities from any liability they may have for
payment of Relators expenses attorneys fees and costs if any under 31 USC sect 3730(d)(l)
and California Government Code sect 12652(g)(8) Except for the foregoing exception the
foregoing sentence is intended to be interpreted as a general release Furthermore except for the
foregoing exception Relator covenants not to sue the SCAN Parties its current and former
officers and directors employees agents attorneys and shareholders of the SCAN Parties witli
respect to any and all rights claims expenses debts liabilities demands obligations costs
damages injuries actions and causes of action of every nature whether known or unknown
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suspected or unsuspected in law or in equity including those for attorneys fees and costs arising
prior to the Effective Date ofthis Agreement and not covered by 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(8)
8 Release of the Governments by the SCAN Parties The SCAN Parties fully and
finally release the Governments and their respective agencies officers agents employees and
servants from any claims (including attorneys fees costs and expenses of every kind and
however denominated) that the SCAN Parties have asserted could have asserted or may assert in
the future against the Governments and their respective agencies officers agents employees
and servants related to or arising out of the Covered Conduct the Civil Action the
Governments investigation of the Covered Conduct and the Civil Action and any ensuing civil
prosecution
9 This Agreement is Fair Adequate and Reasonable Relator and his heirs
successors attorneys agents and assigns do not and shall not object to this Agreement and
instead agree and confirm that this Agreement and the settlement effectuated herein are fair
adequate and reasonable under all ofthe circumstances pursuant to 31 USC sect 3730(c)(2)(B)
and California Government Codesect 12652(e)(2)(B) The Governments and Relator and his heirs
successors attorneys agents and assigns agree that they each retain all of their rights on the
issue of the share percentage if any that Relator should receive of any proceeds of the settlement
of his claims and that no agreements concerning any Relator share have been reached to date
The Governments and Relator and his heirs successors attorneys agents and assigns agree that
neither this Agreement nor any part of it nor any intervention by the United States andor
California in the Civil Action in order to dismiss the Civil Action or for any other purpose nor
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any dismissal of the Civil Action nor any other circumstance (1) shall waive or otherwise affect
the ability of the Governments to contend that Relator is barred from sharing in any or all of the
proceeds of this Agreement or to contend that some or all of the Covered Conduct alleged in the
Recitals paragraph C of this Agreement is not alleged in Relators Complaints in the Civil
Action or (2) shall waive or otherwise affect Relators ability to contend that he should share in
any or all of the proceeds of this Agreement or to contend that some or all of the Covered
Conduct alleged in the Recitals paragraph C of this Agreement is alleged in Relators
Complaints in the Civil Action
10 Double Jeopardy and Excessive Fines Clauses The SCAN Parties waive and
shall not assert any defenses they may have to any criminal prosecution or administrative action
relating to the Covered Conduct that may be based in whole or in part on a contention that under
the Double Jeopardy Clause in the Fifth Amendment ofthe United States Constitution the
Excessive Fines Clause in the Eighth Amendment of the United States Constitution or under
Article 1 sections 15 and 24 of the California Constitution this Agreement bars a remedy sought
in such criminal prosecution or administrative action
11 No Characterization of Settlement Amount for the Purpose of Internal Revenue
Laws Nothing in the preceding Paragraph or in any provision of this Agreement constitutes an
agreement by the United States concerning the characterization of the Settlement Amount for
purposes ofthe Internal Revenue laws Title 26 of the United States Code
12 Denial of Claims The Settlement Amount shall not be decreased as a result of
the denial of claims for payment now being withheld from payment by any Medicare carrier or
intermediary or any state payer related to the Covered Conduct and the SCAN Parties agree not
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to resubmit to any Medicare carrier or intermediary or any state payer any previously denied
claims related to the Covered Conduct and agree not to appeal any such denials of claims
13 Unallowable Costs The SCAN Parties agree to the following
a Unallowable Costs Defined All costs (as defined in the Federal
Acquisition Regulation 48 CFR sect 31205-47 and in Titles XVIII and XIX ofthe Social
Security Act 42 USC sectsect 1395-1395kkk-1 and 1396-1396w-5 and the regulations and official
program directives promulgated thereunder) incurred by or on behalf of the SCAN Parties andor
by their respective present or former officers directors employees shareholders and agents in
connection with
(1) the matters covered by this Agreement
(2) the Governments audit(s) and civil and any criminal
investigation(s) of any of the matters covered by this Agreement
(3) the SCAN Parties investigation defense and corrective actions
undertaken in response to the Governments audit(s) and civil and any
criminal investigation(s) in connection with the matters covered by this
Agreement (including attorneys fees)
(4) the negotiation and performance of this Agreement and
(5) the payment SCAN makes to the Governments pursuant to this
Agreement and any payments that the SCAN Parties may make to Relator
including costs and attorneys fees
are unallowable costs for government contracting purposes and under the Medicare Program
Medicaid Program TRICARE Program and Federal Employees Health Benefits Program
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(FEHBP) or any other federal or state program (hereinafter referred to as Unallowable Costs)
b Future Treatment of Unallowable Costs Unallowable Costs shall be
separately determined and accounted for in nonreimbursable cost centers by the SCAN Parties
and the SCAN Parties shall not charge such Unallowable Costs directly or indirectly to any
contracts with the United States California or any state Medicaid program or seek payment for
such Unallowable Costs through any cost report cost statement information statement or
payment request submitted by the SCAN Parties or any of their respective subsidiaries or
affiliates to the Medicare Medicaid TRICARE or FEHBP Programs or to any other federal or
state program
c Treatment of Unallowable Costs Previously Submitted for Payment The
SCAN Parties further agree that within 90 days of the Effective Date of this Agreement they shall
identify to applicable Medicare and TRICARE fiscal intermediaries carriers andor contractors
and Medicaid and FEHBP fiscal agents any Unallowable Costs included in payments previously
sought from the United States California or any state Medicaid program including but not
limited to payments sought in any cost reports cost statements information reports or payment
requests already submitted by the SCAN Parties or any of their respective subsidiaries or
affiliates and shall request and agree that such cost reports cost statements information
reports or payment requests even if already settled be adjusted to account for the effect of the
inclusion of the unallowable costs The SCAN Parties agree that the Governments at a
minimum shall be entitled to recoup from them any overpayment plus applicable interest and
penalties as a result of the inclusion of such Unallowable Costs on previously-submitted cost
reports information reports cost statements or requests for payment
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Any payments due after the adjustments have been made shall be paid to the
Governments pursuant to the direction of the United States Department of Justice andor the
affected agencies The Governments reserve their rights to disagree with any calculations
submitted by the SCAN Parties or any of their respective subsidiaries or affiliates on the effect of
inclusion of Unallowable Costs (as defined in this Paragraph) on the SCAN Parties or any of
their respective subsidiaries or affiliates cost reports cost statements or information reports
d Nothing in this Agreement shall constitute a waiver of the rights of the
Governments to audit examine or re-examine the SCAN Parties books and records to determine
that no Unallowable Costs have been claimed in accordance with the provisions of this
Paragraph
14 Benefit of the Parties This Agreement is intended to be for the benefit ofthe
Parties only The Parties do not release any claims against any other person or entity except to
the extent provided for in the Paragraph immediately below (waiver for beneficiaries Paragraph)
15 Waiver for Health Care Beneficiaries The SCAN Parties agree that they waive
and shall not seek payment for any of the health care billings covered by this Agreement from
any health care beneficiaries or their parents sponsors legally responsible individuals or third
party payors based upon the claims defined as Covered Conduct
16 Financial Condition SCAN warrants that it has reviewed its financial situation
and that it currently is solvent within the meaning of 11 USC sectsect 547(b)(3) and
548(a)(l)(B)(ii)(I) and shall remain solvent following payment to the Governments ofthe
Settlement Amount Further the Parties warrant that in evaluating whether to execute this
Agreement they (a) have intended that the mutual promises covenants and obligations set forth
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constitute a contemporaneous exchange for new value given to SCAN within the meaning of 11
USC sect 547(c)(1) and (b) conclude that these mutual promises covenants and obligations do
in fact constitute such a contemporaneous exchange Further the Parties warrant that the mutual
promises covenants and obligations set forth herein are intended to and do in fact represent a
reasonably equivalent exchange of value that is not intended to hinder delay or defraud any
entity to which SCAN was or became indebted to on or after the date of this transfer within the
meaning of 11 USC sect 548(a)(l)
17 Costs With the exception ofRelators expenses attorneys fees and costs if any
under 31 USC sect 3730(d)(1) and California Government Codesect 12652(g)(8) each Party shall
bear its and his own legal and other costs fees and expenses incurred in connection with this
matter including the preparation and performance of this Agreement
18 Governing Law This Agreement is governed by the laws of the United States
The exclusive jurisdiction and venue for any dispute relating to this Agreement is the United
States District Court for the Central District of California
19 Voluntary Agreement Each Party represents that it and he freely voluntarily
knowingly and deliberately enters into this Agreement without any degree of duress
compulsion or misconduct by any of the Parties
20 No Representations Outside this Agreement Each of the Parties acknowledges
that except as expressly set forth in this Agreement no representations of any kind or character
have been made by any other party or that partys ~gents representatives or attorneys to induce
execution or delivery of this Agreement
21 Agreement Drafted by All Parties This Agreement shall be deemed to have been
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drafted by all Parties to this Agreement and therefore shall not be construed against any Party for
reasons of drafting
22 Complete Agreement This Agreement constitutes the entire agreement of the
Parties with respect to the subject matter of this Agreement and may not be modified amended
or terminated except by a written agreement signed by the Parties specifically referring to this
Agreement and its relevant portions
23 The SCAN Parties Successors etc This Agreement is binding on the SCAN
Parties respective successors transferees and assigns
24 Relators Successors etc This Agreement is binding on Relators successors
transferees heirs and assigns
25 Disclosure All Parties consent to the Governments disclosure of this Agreement
and information about this Agreement to the public
26 Headings The headings in this Agreement are for convenience only do not
constitute a part of this Agreement and shall not limit or affect any of its provisions
27 Capacity to Execute The undersigned counsel represent and warrant that they are
fully authorized to execute this Agreement on behalf of the persons and entities indicated below
The Relator represents that he has the full power authority and competence necessary to enter
into this Agreement
28 Counterparts and Facsimiles This Agreement may be executed in counterparts
each of which constitutes an original and all of which constitute one and the same Agreement
Facsimiles of signatures shall constitute acceptable binding signatures for purposes of this
Agreement
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29 Effective Date This Agreement is effective on the date of signature of the last
signatory to the Agreement (Effective Date of this Agreement)
In Witness Whereof the Parties through their duly authorized representatives hereunder
set their hands
THE UNITED STATES OF AMERICA
DATED WQ_Qf)_
DATED ~Itk)2shy
DATED_____
Assistant United States Attorney Central District of California
JOHN E LEE Assistant United States Attorney Central District of California
BY __________________
GREGORY E DEMSKE Chief Counsel to the Inspector General Office of Counsel to the Inspector General Office of Inspector General United States Department of Health and Human Services
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29 Effective Date This Agreement is effective on the date of signature of the last
signatory to the Agreement (Effective Date ofthis Agreement)
In Witness Whereof the Parties through their duly authorized representatives hereunder
set their hands
DATED_____
DATED_____
DATED~
THE UNITED STAT_ES OF AMERlCA
BY ___________________ SUSAN R HERSHMAN Assistant United States Attorney Central District of California
BY -------------------------shyJOHNELEE Assistant United States Attorney
Central District of~
BY __~~~==---~--------------------------GREGORY E DEMSKE Chief Counsel to the Inspector General Office of Counsel to the Inspector General Office of Inspector General United States Department of Health and Human Services
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--------------
THE STATE OF CALIFORNIA
l 3o)l~ BY __L_~_J_y~----DATED I
B~ V FRANKEL Supervising Deputy Attorney General State of California
DATED---____ BY ___________________________
LORA FOX MARTIN Deputy Attorney General State of California
BY ___________________________DATED_____ TOBY BOUGLAS
Director Department ofHealth Care Services
SCANHEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP B DEFENDANTS
BY ____________________________DATED____ ______ of SCAN Health Plan
DATED____ BY of Senior Care Action Network
----~
BY _______________________ middot DATED-middotmiddot_____ ________ of SCAN Group
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------
THE STATE OF CALIFORNIA
BY ____________________________DATED_____ BRIAN V FRANKEL Supervising Deputy Attorney General State of California
DATED 1fetz_ ~I B~~~
LO FOX MARTIN Deputy Attorney General State of California
BY _________________________DATED_____ TOBY DOUGLAS
Director Department of Health Care Services
SCANHEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP B DEFENDANTS
DATED____ BY ______________~---------------- of SCAN Health Plan
BYDATEDmiddot--- shy --------~-----of Senior Care Action Network
BY _________________________DATED---_____ _______ of SCAN Group
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middot THE STATEOF CALIFORNIA
DATED_------- BY _____~-----~------------BRIAN V FRANKEL Supervising DeputY Attorney General State of California
DATED______ BY __~----~-----------------LORA FOX MARTIN Deputy Attorney General State of California
lt)iy middot~~ gt c
~~DOUGLAS 7) middot Director
Department ofHealth Care Services
SCAN HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP DEFENDANTS
BY ________________________~DATED____
--~--- of SCAN Health Plan
DATED____ BY __________~----------of Senior Care Action Network middot------
DATED_____ BY _______________________ _ _______ of scAN Groupmiddot
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THE STATE OF CALIFORNIA
DATED_____ BY ____________________________
BRIANV FRANKEL Supervising Deputy Attorney General State of California
DATED_____ BY ____________________________
LORA FOX MARTIN Deputy Attorney General State of California
BY ___________________________DATED_____
TOBY DOUGLAS Director Department of Health Care Services
SCAN HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP DEFENDANTS
BY _______lC-----~-----r--~~----------~~ealthPian
BY
BY
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DATED dz
R GER S GOLDMAN Latham amp Watkins counsel for SCAN Health Plan Senior Care Action Network ann Scan Group
JAM~S Mmiddot S)YQBEN -RELATOR
DATED____ BY ____~--~----~~--- JAMES M SWOSEN
Approved as to form and contellt
DATED_~~__ BY -------=~----------WILLIAM HANAGAMI
The Hanagami Law Firm A Professional Corporation Counsel fDr James M Swoben
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DATED____ BY _______________ DAVID J SCHINDLER Latham amp Watk1ns Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
DATED_____ BY _______________________
ROGERS GOLDMAN Latham amp Watkins Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
JAMES M SWOBEN- RELATOR
DATED9-() to1---BYbull ~~ JAMES M SWOBEN
(
Approved as to form and content
L ~ ~middotmiddotmiddot- BY middott I amp -middot-- - ____ DATED 1 5t I C ( vbull 7 1bull lr-~A7AGAJ11 The Hanagami Law Firm A Professional Corporation Counsel for James M Swoben
DATED______ BY ABRAM J ZINBERG Counsel for James M Swoben
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Exhibit 1
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ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 90012 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel [UNDER SEAL] ) NOTICE OF [SEALED] AND
) [PROPOSED]ORDERTHEREON Plaintiffs )
) [LODGED UNDER SEAL v ) pursuant to the False Claim Act
) 31 USC sect 3730(b)(2) and (3)] [UNDER SEAL] )
) [CAPTION ALSO MAY DESIGNATE (Caption continued on next page) ) OTHER DOCUMENTS FILED OR
) LODGED CONCURRENTLY]
21
Defendants )
22
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 900 12 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel ) JAMES M SWOBEN ) NOTICE OF DISMISSAL OF ALL
Plaintiffs ) CLAIMS AGAINST DEFENDANTS v ) SCAN HEALTH PLAN SENIOR
SCAN HEALTH PLAN a California ) CARE ACTION NETWORK AND corporation fka SENIOR CARE ) SCAN GROUP PURSUANT TO ACTION NETWORK SENIOR CARE ) SETTLEMENT AGREEMENT ACTION NETWORK a business entity) CONSENTS OF THE UNITED (Caption continued on next page) ) STATES AND STATE OF form unknown SCAN GROUP a ) CALIFORNIA ATTORNEYS
23
California corporation [NAMES OF ) GENERAL THERETO AND REMAINING DEFENDANTS ) [PROPOSED]ORDERTHEREON SEALED] )
Defendants ) [LODGED UNDER SEAL ) pursuant to the False Claim Act
31 USC sect 3730(b)(2) and (3)]
[CAPTION ALSO MAY DESIGNATE OTHER DOCUMENTS FILED OR LODGED CONCURRENTLY]
Pursuant to Rule 4l(a) of the Federal Rules of Civil Procedure and subject to
and in order to effectuate the settlement agreement among
the Relator James M Swoben (Relator) Defendants SCAN Health Plan
Senior Care Action Network and SCAN Group (collectively the SCAN
Defendants) and the United States of America and the State of California
(collectively the Governments)
the Relator hereby upon the Order of the Court herein
Dismisses all claims for relief and causes of action filed in the above-
captioned action against Defendants SCAN HEALTH PLAN SENIOR CARE
ACTION NETWORK and SCAN GROUP said dismissal being (a) with
prejudice as to the Relator (b) without prejudice to the United States of America as
to the Ninth Claim for Relief of the Third Amended Complaint and (c) with
prejudice to the Governments as to all other claims for relief and causes of action in
all Complaints filed in the above-captioned action against Defendants SCAN
HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP to
the extent that those claims for relief and causes of action are or purport to be filed
pursuant to the False Claims Act 31 USC sect 3729 et seq and the California False
Claims Act California Government Codesect 12650 et seq
Except that the Relator does not dismiss the Relators claim for a relators
share to be paid by the Governments pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(2) As to this claim the Relator
respectfully requests that the Court retain jurisdiction to determine if necessary the
relators share that the Relator should obtain pursuant to 31 USC sect 3730( d)(l) and
California Government Codesect 12652(g)(2) and
Except that the Relator does not dismiss the Relators claim for payment by
any and all of the SCAN Defendants to the Relator of expenses fees and costs
pursuant to 31 USC sect 3730(d)(l) and California Government Code
sect 12652(g)(8) As to this claim the Relator respectfully requests that the Court
retain jurisdiction to determine if necessary the appropriate expenses fees and
25
costs that the Relator should obtain pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(8)
Respectfully submitted
DATED _____ 2012 WILLIAM HANAGAMI ESQ The Hanagami Law Firm
ABRAM J ZINBERG ESQ Attorney at Law
WILLIAM HANAGAMI ESQ Attorneys for Relator JAMES M SWOBEN
26
CONSENT OF THE ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA
Pursuant to 31 USC sect 3730(b )(1) the Attorney General of the United
States of America by and through the undersigned consents to the foregoing
dismissal The reason for the consent of the Attorney General is that the dismissal
is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED _____ 2012 ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section
JOHN E LEE Assistant United States Attorney
Attorneys for the UNITED STATES OF AMERICA
CONSENT OF THE ATTORNEY GENERAL
OF THE STATE OF CALIFORNIA
Pursuant to California Government Codesect 12652(c)(1) the Attorney
General of the State of California by and through the undersigned consents to the
foregoing dismissal The reason for the consent of the Attorney General is that the
dismissal is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED 2012 ---- shy KAMALA D HARRIS Attorney General of California BRIAN V FRANKEL Supervising Deputy Attorney General
LORA FOX MARTIN Deputy Attorney General
Attorneys for the STATE OF CALIFORNIA
IT IS SO ORDERED
This ____ day of _____ 2012
UNITED STATES DISTRICT JUDGE
28
SCAN submitted or caused to be submitted claims for payment to the Medicare and Medi-Cal
programs and the Governments paid SCAN on those claims
C The Governments contend that they have certain civil claims against SCAN
Specifically the Governments contend that they have claims against SCAN arising from the
conduct described below (hereinafter collectively referred to as the Covered Conduct) which
the Governments respectively allege
1 From on or about January 1 1985 through December 31 2008 SCAN
received capitated payments from Californias Medi-Cal program for SCANs Long Term Care
Certified (LTC) members The Governments respectively contend that these payments were
excessive andor violated applicable contractual statutory and regulatory requirements because
of the following alleged conduct
(a) The United States alleges From on or about January 1 1985 through
December 31 2008 the capitation rates set by the State of California for SCANs LTC members
were over the legal capitation rate allowed by California Welfare and Institutions Code
sect 1430l(a) California Admin Code Title 22 (22 CCR) sect 53321(b) and to the extent
applicable 22 CCRsect 53869(c) These over-the-legal-capitation amounts were set without
certain adjustments to the initial base population costs of in-facility nursing home services which
adjustments were needed to arrive at base costs for those services that took into account SCANs
LTC members actual utilization of in-facility nursing home services
(b) In addition the United States alleges From on or about July 1 2001
through December 31 2007 SCAN received from Californias Medi-Cal program through
Californias payment ofcapitated rates for SCANs LTC members certain additional amounts
2
that were over the legal capitation rates allowed by California Welfare and Institutions Codesect
14301(a) 22 CCR sect 53321(b) and to the extent applicable 22 CCR sect 53869(c) These
additional over-the-legal-capitation amounts were set without certain adjustments to the base
costs of in-facility nursing home services which adjustments were needed to arrive at contractshy
adjusted base costs for those services that accounted for the fact that during those years SCANs
contracts with California required that SCAN dis-emoll each of its LTC members after that
member had stayed in a nursing home for an additional month after the month of entry (except
that froni July 1 2001 to July 31 2003 the stay without disemollment could be up to 100 days if
the member required skilled nursing care reimbursed by Medicare)
(c) California alleges From on or about January 1 1985 through
December 31 2008 notwithstanding the fact that DHCS knew that SCAN was receiving both
Medicare and Medi-Cal funds SCAN failed to provide contractually required financial
information to DHCS thereby impairing DHCS from revising capitation rates for SCAN
2 In addition the United States alleges For Medicare Part C payment years
2005 and 2006 SCAN retained coding consultants (the SCAN coding consultants) to conduct
retrospective blind reviews of the medical records underlying a number of specific encounters
(the Encounters) of SCAN members with severe illnesses and to identify diagnosis codes
applicable to such encounters Pursuant to the blind review protocol the SCAN coding
consultants were not provided with the diagnosis codes that the physicians for those members
had previously identified for the Encounters The SCAN coding consultants independently
identified applicable diagnosis codes for the Encounters SCAN provided to the United States
Centers for Medicare and Medicaid Services (CMS) as corrections the diagnosis codes that
3
the SCAN coding consultants had identified and that the physicians had not identified As to the
diagnosis codes that the physicians had previously identified but that the SCAN coding
consultants had failed to identify SCAN failed to inform CMS that such codes might have
needed to be withdrawn from SCANs prior submissions to CMS for the Encounters Had SCAN
provided that information to CMS Medicare Part Cs capitated rate payments to SCAN based on
the Encounters allegedly would have been lower than theywere
D In addition on July 13 2009 pursuant to the qui tam provisions of the False
Claims Act 31 USC sect 3730(b) and the California False Claims Act California Government
Codesect 12652(c) James M Swoben (Relator) filed a qui tam action against the SCAN Parties
and other defendants in the United States District Court for the Central District of California
captioned United States ofAmerica and State ofCalifornia ex rei James M Swoben v Scan
Health Plan Senior Care Action Network Scan Group and [names ofremaining defendants
sealed CV 09-5013 JFW (the Civil Action)
E The SCAN Parties deny the allegations of the Governments and of Relator This
Settlement Agreement is neither an admission of liability by the SCAN Parties nor a concession
by the Governments that their claims are not well founded
To avoid the delay uncertainty inconvenience and expense of protracted litigation of the
foregoing claims and in consideration of the mutual promises and obligations ofthis Agreement
the Parties agree and covenant as follows
TERMS AND CONDITIONS
1 Payment to the Governments No later than ten (1 0) days after the Effective Date
of this Agreement SCAN shall pay to the Governments $32200000000 plus interest on that
4
Amount at a rate of 1875 percent per year from May 1 2012 (handshake interest) (collectively
the Settlement Amount) as follows $13251282500 plus handshake interest to the United
States by electronic funds transfer pursuant to written instructions to be provided by the United
States Attorney for the Central District of California and $18948717500 plus handshake
interest to California pursuant to written instructions to be provided by the California Attorney
Generals Office
2 Relators Statutory Expenses Attorneys Fees and Costs The SCAN Parties and
Relator will resolve the issue of Relators expenses attorneys fees and costs if any under 31
USC sect 3730(d)(1) and California Government Codesect 12652(g)(8) separately from this
Agreement The SCAN Parties and Relator and his heirs successors attorneys agents and
assigns agree that they each retain all of their rights on that issue and that no agreements
concerning that issue have been reached to date
3 Dismissal of the Civil Action Upon receipt of the payment described in
Paragraph 1 above the Governments and Relator shall promptly sign a Notice of Dismissal of
All Claims Against Defendants SCAN Health Plan Senior Care Action Network and SCAN
Group Pursuant to Settlement Agreement Consents ofthe United States and State of California
Attorneys General Thereto and [Proposed] Order Thereon (Notice of Dismissal) in the form
attached hereto as Exhibit 1 The United States and California shall also sign a notice of their
decision to intervene in the Civil Action except as to the Ninth Claim for Relief of the Third
Amended Complaint as to which the United States shall decline to intervene The United States
shall then promptly file andor lodge with the Court adjudicating the Civil Action the aforesaid
signed notice of intervention and declination and the aforesaid signed Notice of Dismissal The
5
Parties agree that if the two said documents are filed concurrently the said Notice of Dismissal
shall be deemed to have been filed after the said notice of intervention and declination For
purposes of any action claim proceeding or dispute other than the Civil Action brought or
asserted by the United States or on behalf of the United States by any qui tam relator other than
Relator SCAN Senior Care Action Network and Scan Group (1) construe the Seventh Claim
for Relief of the Second Amended Complaint in the Civil Action to include solely paragraphs 84
through 87 thereof inclusive and (2) construe the Seventh Claim for Relief of the Third
Amended Complaint in the Civil Action to include solely paragraphs 88 through 91 thereof
inclusive
4 The Governments Releases of the SCAN Parties
a Release of the SCAN Parties by the United States Subject to the
exceptions in Paragraph 6 (concerning excluded claims) below and conditioned upon SCANs
full payment of the Settlement Amount the United States releases the SCAN Parties from any
civil or administrative monetary claim the United States has for the Covered Conduct under the
False Claims Act 31 USC sect 3729-3733 both pre-amendment and as amended by the Fraud
Enforcement and Recovery Act of2009 Pub L 111-21 123 Stat 1617 (2009) the Civil
Monetary Penalties Law 42 USC sect 1320a-7a the Program Fraud Civil Remedies Act 31
USC sectsect 3801-3812 or the common law theories of breach of contract recoupment unlawful
payment legally unauthorized payment payment by mistake unjust enrichment and fraud
b Release of the SCAN Parties by California Subject to the exceptions in
Paragraph 6 (concerning excluded claims) below and conditioned upon SCANs full payment of
the Settlement Amount California releases the SCAN Parties from any civil or administrative
6
monetary cl~im California has for the Covered Conduct under the California False Claims Act
Cal Government Codesectsect 12650-12656 or the common law theories of breach of contract
recoupment unlawful payment legally unauthorized payment payment by mistake unjust
enrichment and fraud
5 Reservation of Rights to Administrative Actions
a OIG-HHS Reservation of Rights OIG-HHS expressly reserves all rights
to institute to direct or to maintain any administrative action seeking exclusion against the
SCAN Parties andor their respective officers directors and employees from Medicare
Medicaid or other Federal health care programs as defined in 42 USC sect 1320a-7b(f) under 42
USC sect 1320a-7(a) (mandatory exclusion) or 42 USC sect 1320a-7(b) (permissive exclusion)
b Release of Administrative Actions by California In consideration of the
obligations of the SCAN Parties in this Agreement and SCANs full payment of the Settlement
Amount California agrees to release the SCAN Parties from and to refrain from instituting
directing or maintaining against the SCAN Parties any administrative action seeking permissive
exclusion from Medi-Cal for the Covered Conduct California expressly reserves all rights to
comply with any mandatory statutory obligations to suspend or exclude the SCAN Parties from
Medi-Cal or any other program based upon the Covered Conduct
6 Exceptions to the Governments Releases Notwithstanding the releases given in
this Agreement or any other term of this Agreement the following claims of the Governments
are specifically reserved and are not released
a Any liability arising under Title 26 US Code (Internal Revenue Code) or
under Californias Taxation and Revenue Code
7
b Any criminal liability
c Except as explicitly stated in this Agreement any administrative liability
including mandatory exclusion from Federal or state health care programs
d Any liability to the United States (or its agencies) or to California (or its
agencies) for any conduct other than (1) the Covered Conduct and (2) the conduct alleged as to
the SCAN Parties in Relators Complaints in the Civil Action subject to the agreed construction
set forth in Paragraph 3 of this Agreement of the Seventh Claim for Relief in the Second and
Third Amended Complaints and subject to subparagraph (e) below
e Except as set forth in Paragraph C2 of this Agreement any liability
arising under the Ninth Claim for Relief in the Third Amended Complaint
f Any liability based upon obligations created by this Agreement
g Any liability for express or implied warranty claims or other claims for
defective or deficient products or services including quality of goods and services
h Any liability for failure to deliver goods or services due
1 Any liability for personal injury or property damage or for other
consequential damages arising from the Covered Conduct
J Any liability of individuals
k Any liability for SCANs receipt of payments from Medi-Cal for services
to beneficiaries who were receiving similar services from counties through the In-Home Support
Services Program (IHSS)
1 Any liability for SCANs certifications of required nursing facility levels of
care made on or after January 1 2009
8
7 Release of the SCAN Parties by Relator In consideration of the obligations of the
SCAN Parties in this Agreement~ conditioned upon the full payment of the Settlement Amount
Relator for himself and for his heirs successors attorneys agents and assigns agrees to
generally release acquit waive and forever discharge the SCAN Parties and all the current and
former officers and directors employees agents attorneys owners and shareholders of the
SCAN Parties from any and all rights claims expenses debts liabilities demands obligations
costs damages injuries actions and causes of action of every nature whether known or
unknown suspected or unsuspected in law or in equity from the beginning of the world to the
day of these presents including but not limited to those he advanced or could have advanced in
the Civil Action or otherwise under the False Claims Act 31 USC sectsect 3729-3733 for expenses
or attorneys fees and costs under 31 USC sect 3730(h) or under 31 USC sect 3730(h) for
employment decisions by the SCAN Parties under the California False Claims Act Cal
Government Codesectsect 12650-12656 andor other statutory or common law doctrines of payment
by mistake unjust enrichment breach of contract fraud or the like except however that
Relator does not release the aforesaid persons and entities from any liability they may have for
payment of Relators expenses attorneys fees and costs if any under 31 USC sect 3730(d)(l)
and California Government Code sect 12652(g)(8) Except for the foregoing exception the
foregoing sentence is intended to be interpreted as a general release Furthermore except for the
foregoing exception Relator covenants not to sue the SCAN Parties its current and former
officers and directors employees agents attorneys and shareholders of the SCAN Parties witli
respect to any and all rights claims expenses debts liabilities demands obligations costs
damages injuries actions and causes of action of every nature whether known or unknown
9
suspected or unsuspected in law or in equity including those for attorneys fees and costs arising
prior to the Effective Date ofthis Agreement and not covered by 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(8)
8 Release of the Governments by the SCAN Parties The SCAN Parties fully and
finally release the Governments and their respective agencies officers agents employees and
servants from any claims (including attorneys fees costs and expenses of every kind and
however denominated) that the SCAN Parties have asserted could have asserted or may assert in
the future against the Governments and their respective agencies officers agents employees
and servants related to or arising out of the Covered Conduct the Civil Action the
Governments investigation of the Covered Conduct and the Civil Action and any ensuing civil
prosecution
9 This Agreement is Fair Adequate and Reasonable Relator and his heirs
successors attorneys agents and assigns do not and shall not object to this Agreement and
instead agree and confirm that this Agreement and the settlement effectuated herein are fair
adequate and reasonable under all ofthe circumstances pursuant to 31 USC sect 3730(c)(2)(B)
and California Government Codesect 12652(e)(2)(B) The Governments and Relator and his heirs
successors attorneys agents and assigns agree that they each retain all of their rights on the
issue of the share percentage if any that Relator should receive of any proceeds of the settlement
of his claims and that no agreements concerning any Relator share have been reached to date
The Governments and Relator and his heirs successors attorneys agents and assigns agree that
neither this Agreement nor any part of it nor any intervention by the United States andor
California in the Civil Action in order to dismiss the Civil Action or for any other purpose nor
10
any dismissal of the Civil Action nor any other circumstance (1) shall waive or otherwise affect
the ability of the Governments to contend that Relator is barred from sharing in any or all of the
proceeds of this Agreement or to contend that some or all of the Covered Conduct alleged in the
Recitals paragraph C of this Agreement is not alleged in Relators Complaints in the Civil
Action or (2) shall waive or otherwise affect Relators ability to contend that he should share in
any or all of the proceeds of this Agreement or to contend that some or all of the Covered
Conduct alleged in the Recitals paragraph C of this Agreement is alleged in Relators
Complaints in the Civil Action
10 Double Jeopardy and Excessive Fines Clauses The SCAN Parties waive and
shall not assert any defenses they may have to any criminal prosecution or administrative action
relating to the Covered Conduct that may be based in whole or in part on a contention that under
the Double Jeopardy Clause in the Fifth Amendment ofthe United States Constitution the
Excessive Fines Clause in the Eighth Amendment of the United States Constitution or under
Article 1 sections 15 and 24 of the California Constitution this Agreement bars a remedy sought
in such criminal prosecution or administrative action
11 No Characterization of Settlement Amount for the Purpose of Internal Revenue
Laws Nothing in the preceding Paragraph or in any provision of this Agreement constitutes an
agreement by the United States concerning the characterization of the Settlement Amount for
purposes ofthe Internal Revenue laws Title 26 of the United States Code
12 Denial of Claims The Settlement Amount shall not be decreased as a result of
the denial of claims for payment now being withheld from payment by any Medicare carrier or
intermediary or any state payer related to the Covered Conduct and the SCAN Parties agree not
11
to resubmit to any Medicare carrier or intermediary or any state payer any previously denied
claims related to the Covered Conduct and agree not to appeal any such denials of claims
13 Unallowable Costs The SCAN Parties agree to the following
a Unallowable Costs Defined All costs (as defined in the Federal
Acquisition Regulation 48 CFR sect 31205-47 and in Titles XVIII and XIX ofthe Social
Security Act 42 USC sectsect 1395-1395kkk-1 and 1396-1396w-5 and the regulations and official
program directives promulgated thereunder) incurred by or on behalf of the SCAN Parties andor
by their respective present or former officers directors employees shareholders and agents in
connection with
(1) the matters covered by this Agreement
(2) the Governments audit(s) and civil and any criminal
investigation(s) of any of the matters covered by this Agreement
(3) the SCAN Parties investigation defense and corrective actions
undertaken in response to the Governments audit(s) and civil and any
criminal investigation(s) in connection with the matters covered by this
Agreement (including attorneys fees)
(4) the negotiation and performance of this Agreement and
(5) the payment SCAN makes to the Governments pursuant to this
Agreement and any payments that the SCAN Parties may make to Relator
including costs and attorneys fees
are unallowable costs for government contracting purposes and under the Medicare Program
Medicaid Program TRICARE Program and Federal Employees Health Benefits Program
12
(FEHBP) or any other federal or state program (hereinafter referred to as Unallowable Costs)
b Future Treatment of Unallowable Costs Unallowable Costs shall be
separately determined and accounted for in nonreimbursable cost centers by the SCAN Parties
and the SCAN Parties shall not charge such Unallowable Costs directly or indirectly to any
contracts with the United States California or any state Medicaid program or seek payment for
such Unallowable Costs through any cost report cost statement information statement or
payment request submitted by the SCAN Parties or any of their respective subsidiaries or
affiliates to the Medicare Medicaid TRICARE or FEHBP Programs or to any other federal or
state program
c Treatment of Unallowable Costs Previously Submitted for Payment The
SCAN Parties further agree that within 90 days of the Effective Date of this Agreement they shall
identify to applicable Medicare and TRICARE fiscal intermediaries carriers andor contractors
and Medicaid and FEHBP fiscal agents any Unallowable Costs included in payments previously
sought from the United States California or any state Medicaid program including but not
limited to payments sought in any cost reports cost statements information reports or payment
requests already submitted by the SCAN Parties or any of their respective subsidiaries or
affiliates and shall request and agree that such cost reports cost statements information
reports or payment requests even if already settled be adjusted to account for the effect of the
inclusion of the unallowable costs The SCAN Parties agree that the Governments at a
minimum shall be entitled to recoup from them any overpayment plus applicable interest and
penalties as a result of the inclusion of such Unallowable Costs on previously-submitted cost
reports information reports cost statements or requests for payment
13
Any payments due after the adjustments have been made shall be paid to the
Governments pursuant to the direction of the United States Department of Justice andor the
affected agencies The Governments reserve their rights to disagree with any calculations
submitted by the SCAN Parties or any of their respective subsidiaries or affiliates on the effect of
inclusion of Unallowable Costs (as defined in this Paragraph) on the SCAN Parties or any of
their respective subsidiaries or affiliates cost reports cost statements or information reports
d Nothing in this Agreement shall constitute a waiver of the rights of the
Governments to audit examine or re-examine the SCAN Parties books and records to determine
that no Unallowable Costs have been claimed in accordance with the provisions of this
Paragraph
14 Benefit of the Parties This Agreement is intended to be for the benefit ofthe
Parties only The Parties do not release any claims against any other person or entity except to
the extent provided for in the Paragraph immediately below (waiver for beneficiaries Paragraph)
15 Waiver for Health Care Beneficiaries The SCAN Parties agree that they waive
and shall not seek payment for any of the health care billings covered by this Agreement from
any health care beneficiaries or their parents sponsors legally responsible individuals or third
party payors based upon the claims defined as Covered Conduct
16 Financial Condition SCAN warrants that it has reviewed its financial situation
and that it currently is solvent within the meaning of 11 USC sectsect 547(b)(3) and
548(a)(l)(B)(ii)(I) and shall remain solvent following payment to the Governments ofthe
Settlement Amount Further the Parties warrant that in evaluating whether to execute this
Agreement they (a) have intended that the mutual promises covenants and obligations set forth
14
constitute a contemporaneous exchange for new value given to SCAN within the meaning of 11
USC sect 547(c)(1) and (b) conclude that these mutual promises covenants and obligations do
in fact constitute such a contemporaneous exchange Further the Parties warrant that the mutual
promises covenants and obligations set forth herein are intended to and do in fact represent a
reasonably equivalent exchange of value that is not intended to hinder delay or defraud any
entity to which SCAN was or became indebted to on or after the date of this transfer within the
meaning of 11 USC sect 548(a)(l)
17 Costs With the exception ofRelators expenses attorneys fees and costs if any
under 31 USC sect 3730(d)(1) and California Government Codesect 12652(g)(8) each Party shall
bear its and his own legal and other costs fees and expenses incurred in connection with this
matter including the preparation and performance of this Agreement
18 Governing Law This Agreement is governed by the laws of the United States
The exclusive jurisdiction and venue for any dispute relating to this Agreement is the United
States District Court for the Central District of California
19 Voluntary Agreement Each Party represents that it and he freely voluntarily
knowingly and deliberately enters into this Agreement without any degree of duress
compulsion or misconduct by any of the Parties
20 No Representations Outside this Agreement Each of the Parties acknowledges
that except as expressly set forth in this Agreement no representations of any kind or character
have been made by any other party or that partys ~gents representatives or attorneys to induce
execution or delivery of this Agreement
21 Agreement Drafted by All Parties This Agreement shall be deemed to have been
15
drafted by all Parties to this Agreement and therefore shall not be construed against any Party for
reasons of drafting
22 Complete Agreement This Agreement constitutes the entire agreement of the
Parties with respect to the subject matter of this Agreement and may not be modified amended
or terminated except by a written agreement signed by the Parties specifically referring to this
Agreement and its relevant portions
23 The SCAN Parties Successors etc This Agreement is binding on the SCAN
Parties respective successors transferees and assigns
24 Relators Successors etc This Agreement is binding on Relators successors
transferees heirs and assigns
25 Disclosure All Parties consent to the Governments disclosure of this Agreement
and information about this Agreement to the public
26 Headings The headings in this Agreement are for convenience only do not
constitute a part of this Agreement and shall not limit or affect any of its provisions
27 Capacity to Execute The undersigned counsel represent and warrant that they are
fully authorized to execute this Agreement on behalf of the persons and entities indicated below
The Relator represents that he has the full power authority and competence necessary to enter
into this Agreement
28 Counterparts and Facsimiles This Agreement may be executed in counterparts
each of which constitutes an original and all of which constitute one and the same Agreement
Facsimiles of signatures shall constitute acceptable binding signatures for purposes of this
Agreement
16
29 Effective Date This Agreement is effective on the date of signature of the last
signatory to the Agreement (Effective Date of this Agreement)
In Witness Whereof the Parties through their duly authorized representatives hereunder
set their hands
THE UNITED STATES OF AMERICA
DATED WQ_Qf)_
DATED ~Itk)2shy
DATED_____
Assistant United States Attorney Central District of California
JOHN E LEE Assistant United States Attorney Central District of California
BY __________________
GREGORY E DEMSKE Chief Counsel to the Inspector General Office of Counsel to the Inspector General Office of Inspector General United States Department of Health and Human Services
17
29 Effective Date This Agreement is effective on the date of signature of the last
signatory to the Agreement (Effective Date ofthis Agreement)
In Witness Whereof the Parties through their duly authorized representatives hereunder
set their hands
DATED_____
DATED_____
DATED~
THE UNITED STAT_ES OF AMERlCA
BY ___________________ SUSAN R HERSHMAN Assistant United States Attorney Central District of California
BY -------------------------shyJOHNELEE Assistant United States Attorney
Central District of~
BY __~~~==---~--------------------------GREGORY E DEMSKE Chief Counsel to the Inspector General Office of Counsel to the Inspector General Office of Inspector General United States Department of Health and Human Services
17
--------------
THE STATE OF CALIFORNIA
l 3o)l~ BY __L_~_J_y~----DATED I
B~ V FRANKEL Supervising Deputy Attorney General State of California
DATED---____ BY ___________________________
LORA FOX MARTIN Deputy Attorney General State of California
BY ___________________________DATED_____ TOBY BOUGLAS
Director Department ofHealth Care Services
SCANHEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP B DEFENDANTS
BY ____________________________DATED____ ______ of SCAN Health Plan
DATED____ BY of Senior Care Action Network
----~
BY _______________________ middot DATED-middotmiddot_____ ________ of SCAN Group
18
------
THE STATE OF CALIFORNIA
BY ____________________________DATED_____ BRIAN V FRANKEL Supervising Deputy Attorney General State of California
DATED 1fetz_ ~I B~~~
LO FOX MARTIN Deputy Attorney General State of California
BY _________________________DATED_____ TOBY DOUGLAS
Director Department of Health Care Services
SCANHEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP B DEFENDANTS
DATED____ BY ______________~---------------- of SCAN Health Plan
BYDATEDmiddot--- shy --------~-----of Senior Care Action Network
BY _________________________DATED---_____ _______ of SCAN Group
18
middot THE STATEOF CALIFORNIA
DATED_------- BY _____~-----~------------BRIAN V FRANKEL Supervising DeputY Attorney General State of California
DATED______ BY __~----~-----------------LORA FOX MARTIN Deputy Attorney General State of California
lt)iy middot~~ gt c
~~DOUGLAS 7) middot Director
Department ofHealth Care Services
SCAN HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP DEFENDANTS
BY ________________________~DATED____
--~--- of SCAN Health Plan
DATED____ BY __________~----------of Senior Care Action Network middot------
DATED_____ BY _______________________ _ _______ of scAN Groupmiddot
18
THE STATE OF CALIFORNIA
DATED_____ BY ____________________________
BRIANV FRANKEL Supervising Deputy Attorney General State of California
DATED_____ BY ____________________________
LORA FOX MARTIN Deputy Attorney General State of California
BY ___________________________DATED_____
TOBY DOUGLAS Director Department of Health Care Services
SCAN HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP DEFENDANTS
BY _______lC-----~-----r--~~----------~~ealthPian
BY
BY
18
DATED dz
R GER S GOLDMAN Latham amp Watkins counsel for SCAN Health Plan Senior Care Action Network ann Scan Group
JAM~S Mmiddot S)YQBEN -RELATOR
DATED____ BY ____~--~----~~--- JAMES M SWOSEN
Approved as to form and contellt
DATED_~~__ BY -------=~----------WILLIAM HANAGAMI
The Hanagami Law Firm A Professional Corporation Counsel fDr James M Swoben
19
DATED____ BY _______________ DAVID J SCHINDLER Latham amp Watk1ns Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
DATED_____ BY _______________________
ROGERS GOLDMAN Latham amp Watkins Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
JAMES M SWOBEN- RELATOR
DATED9-() to1---BYbull ~~ JAMES M SWOBEN
(
Approved as to form and content
L ~ ~middotmiddotmiddot- BY middott I amp -middot-- - ____ DATED 1 5t I C ( vbull 7 1bull lr-~A7AGAJ11 The Hanagami Law Firm A Professional Corporation Counsel for James M Swoben
DATED______ BY ABRAM J ZINBERG Counsel for James M Swoben
19
Exhibit 1
20
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 90012 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel [UNDER SEAL] ) NOTICE OF [SEALED] AND
) [PROPOSED]ORDERTHEREON Plaintiffs )
) [LODGED UNDER SEAL v ) pursuant to the False Claim Act
) 31 USC sect 3730(b)(2) and (3)] [UNDER SEAL] )
) [CAPTION ALSO MAY DESIGNATE (Caption continued on next page) ) OTHER DOCUMENTS FILED OR
) LODGED CONCURRENTLY]
21
Defendants )
22
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 900 12 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel ) JAMES M SWOBEN ) NOTICE OF DISMISSAL OF ALL
Plaintiffs ) CLAIMS AGAINST DEFENDANTS v ) SCAN HEALTH PLAN SENIOR
SCAN HEALTH PLAN a California ) CARE ACTION NETWORK AND corporation fka SENIOR CARE ) SCAN GROUP PURSUANT TO ACTION NETWORK SENIOR CARE ) SETTLEMENT AGREEMENT ACTION NETWORK a business entity) CONSENTS OF THE UNITED (Caption continued on next page) ) STATES AND STATE OF form unknown SCAN GROUP a ) CALIFORNIA ATTORNEYS
23
California corporation [NAMES OF ) GENERAL THERETO AND REMAINING DEFENDANTS ) [PROPOSED]ORDERTHEREON SEALED] )
Defendants ) [LODGED UNDER SEAL ) pursuant to the False Claim Act
31 USC sect 3730(b)(2) and (3)]
[CAPTION ALSO MAY DESIGNATE OTHER DOCUMENTS FILED OR LODGED CONCURRENTLY]
Pursuant to Rule 4l(a) of the Federal Rules of Civil Procedure and subject to
and in order to effectuate the settlement agreement among
the Relator James M Swoben (Relator) Defendants SCAN Health Plan
Senior Care Action Network and SCAN Group (collectively the SCAN
Defendants) and the United States of America and the State of California
(collectively the Governments)
the Relator hereby upon the Order of the Court herein
Dismisses all claims for relief and causes of action filed in the above-
captioned action against Defendants SCAN HEALTH PLAN SENIOR CARE
ACTION NETWORK and SCAN GROUP said dismissal being (a) with
prejudice as to the Relator (b) without prejudice to the United States of America as
to the Ninth Claim for Relief of the Third Amended Complaint and (c) with
prejudice to the Governments as to all other claims for relief and causes of action in
all Complaints filed in the above-captioned action against Defendants SCAN
HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP to
the extent that those claims for relief and causes of action are or purport to be filed
pursuant to the False Claims Act 31 USC sect 3729 et seq and the California False
Claims Act California Government Codesect 12650 et seq
Except that the Relator does not dismiss the Relators claim for a relators
share to be paid by the Governments pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(2) As to this claim the Relator
respectfully requests that the Court retain jurisdiction to determine if necessary the
relators share that the Relator should obtain pursuant to 31 USC sect 3730( d)(l) and
California Government Codesect 12652(g)(2) and
Except that the Relator does not dismiss the Relators claim for payment by
any and all of the SCAN Defendants to the Relator of expenses fees and costs
pursuant to 31 USC sect 3730(d)(l) and California Government Code
sect 12652(g)(8) As to this claim the Relator respectfully requests that the Court
retain jurisdiction to determine if necessary the appropriate expenses fees and
25
costs that the Relator should obtain pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(8)
Respectfully submitted
DATED _____ 2012 WILLIAM HANAGAMI ESQ The Hanagami Law Firm
ABRAM J ZINBERG ESQ Attorney at Law
WILLIAM HANAGAMI ESQ Attorneys for Relator JAMES M SWOBEN
26
CONSENT OF THE ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA
Pursuant to 31 USC sect 3730(b )(1) the Attorney General of the United
States of America by and through the undersigned consents to the foregoing
dismissal The reason for the consent of the Attorney General is that the dismissal
is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED _____ 2012 ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section
JOHN E LEE Assistant United States Attorney
Attorneys for the UNITED STATES OF AMERICA
CONSENT OF THE ATTORNEY GENERAL
OF THE STATE OF CALIFORNIA
Pursuant to California Government Codesect 12652(c)(1) the Attorney
General of the State of California by and through the undersigned consents to the
foregoing dismissal The reason for the consent of the Attorney General is that the
dismissal is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED 2012 ---- shy KAMALA D HARRIS Attorney General of California BRIAN V FRANKEL Supervising Deputy Attorney General
LORA FOX MARTIN Deputy Attorney General
Attorneys for the STATE OF CALIFORNIA
IT IS SO ORDERED
This ____ day of _____ 2012
UNITED STATES DISTRICT JUDGE
28
that were over the legal capitation rates allowed by California Welfare and Institutions Codesect
14301(a) 22 CCR sect 53321(b) and to the extent applicable 22 CCR sect 53869(c) These
additional over-the-legal-capitation amounts were set without certain adjustments to the base
costs of in-facility nursing home services which adjustments were needed to arrive at contractshy
adjusted base costs for those services that accounted for the fact that during those years SCANs
contracts with California required that SCAN dis-emoll each of its LTC members after that
member had stayed in a nursing home for an additional month after the month of entry (except
that froni July 1 2001 to July 31 2003 the stay without disemollment could be up to 100 days if
the member required skilled nursing care reimbursed by Medicare)
(c) California alleges From on or about January 1 1985 through
December 31 2008 notwithstanding the fact that DHCS knew that SCAN was receiving both
Medicare and Medi-Cal funds SCAN failed to provide contractually required financial
information to DHCS thereby impairing DHCS from revising capitation rates for SCAN
2 In addition the United States alleges For Medicare Part C payment years
2005 and 2006 SCAN retained coding consultants (the SCAN coding consultants) to conduct
retrospective blind reviews of the medical records underlying a number of specific encounters
(the Encounters) of SCAN members with severe illnesses and to identify diagnosis codes
applicable to such encounters Pursuant to the blind review protocol the SCAN coding
consultants were not provided with the diagnosis codes that the physicians for those members
had previously identified for the Encounters The SCAN coding consultants independently
identified applicable diagnosis codes for the Encounters SCAN provided to the United States
Centers for Medicare and Medicaid Services (CMS) as corrections the diagnosis codes that
3
the SCAN coding consultants had identified and that the physicians had not identified As to the
diagnosis codes that the physicians had previously identified but that the SCAN coding
consultants had failed to identify SCAN failed to inform CMS that such codes might have
needed to be withdrawn from SCANs prior submissions to CMS for the Encounters Had SCAN
provided that information to CMS Medicare Part Cs capitated rate payments to SCAN based on
the Encounters allegedly would have been lower than theywere
D In addition on July 13 2009 pursuant to the qui tam provisions of the False
Claims Act 31 USC sect 3730(b) and the California False Claims Act California Government
Codesect 12652(c) James M Swoben (Relator) filed a qui tam action against the SCAN Parties
and other defendants in the United States District Court for the Central District of California
captioned United States ofAmerica and State ofCalifornia ex rei James M Swoben v Scan
Health Plan Senior Care Action Network Scan Group and [names ofremaining defendants
sealed CV 09-5013 JFW (the Civil Action)
E The SCAN Parties deny the allegations of the Governments and of Relator This
Settlement Agreement is neither an admission of liability by the SCAN Parties nor a concession
by the Governments that their claims are not well founded
To avoid the delay uncertainty inconvenience and expense of protracted litigation of the
foregoing claims and in consideration of the mutual promises and obligations ofthis Agreement
the Parties agree and covenant as follows
TERMS AND CONDITIONS
1 Payment to the Governments No later than ten (1 0) days after the Effective Date
of this Agreement SCAN shall pay to the Governments $32200000000 plus interest on that
4
Amount at a rate of 1875 percent per year from May 1 2012 (handshake interest) (collectively
the Settlement Amount) as follows $13251282500 plus handshake interest to the United
States by electronic funds transfer pursuant to written instructions to be provided by the United
States Attorney for the Central District of California and $18948717500 plus handshake
interest to California pursuant to written instructions to be provided by the California Attorney
Generals Office
2 Relators Statutory Expenses Attorneys Fees and Costs The SCAN Parties and
Relator will resolve the issue of Relators expenses attorneys fees and costs if any under 31
USC sect 3730(d)(1) and California Government Codesect 12652(g)(8) separately from this
Agreement The SCAN Parties and Relator and his heirs successors attorneys agents and
assigns agree that they each retain all of their rights on that issue and that no agreements
concerning that issue have been reached to date
3 Dismissal of the Civil Action Upon receipt of the payment described in
Paragraph 1 above the Governments and Relator shall promptly sign a Notice of Dismissal of
All Claims Against Defendants SCAN Health Plan Senior Care Action Network and SCAN
Group Pursuant to Settlement Agreement Consents ofthe United States and State of California
Attorneys General Thereto and [Proposed] Order Thereon (Notice of Dismissal) in the form
attached hereto as Exhibit 1 The United States and California shall also sign a notice of their
decision to intervene in the Civil Action except as to the Ninth Claim for Relief of the Third
Amended Complaint as to which the United States shall decline to intervene The United States
shall then promptly file andor lodge with the Court adjudicating the Civil Action the aforesaid
signed notice of intervention and declination and the aforesaid signed Notice of Dismissal The
5
Parties agree that if the two said documents are filed concurrently the said Notice of Dismissal
shall be deemed to have been filed after the said notice of intervention and declination For
purposes of any action claim proceeding or dispute other than the Civil Action brought or
asserted by the United States or on behalf of the United States by any qui tam relator other than
Relator SCAN Senior Care Action Network and Scan Group (1) construe the Seventh Claim
for Relief of the Second Amended Complaint in the Civil Action to include solely paragraphs 84
through 87 thereof inclusive and (2) construe the Seventh Claim for Relief of the Third
Amended Complaint in the Civil Action to include solely paragraphs 88 through 91 thereof
inclusive
4 The Governments Releases of the SCAN Parties
a Release of the SCAN Parties by the United States Subject to the
exceptions in Paragraph 6 (concerning excluded claims) below and conditioned upon SCANs
full payment of the Settlement Amount the United States releases the SCAN Parties from any
civil or administrative monetary claim the United States has for the Covered Conduct under the
False Claims Act 31 USC sect 3729-3733 both pre-amendment and as amended by the Fraud
Enforcement and Recovery Act of2009 Pub L 111-21 123 Stat 1617 (2009) the Civil
Monetary Penalties Law 42 USC sect 1320a-7a the Program Fraud Civil Remedies Act 31
USC sectsect 3801-3812 or the common law theories of breach of contract recoupment unlawful
payment legally unauthorized payment payment by mistake unjust enrichment and fraud
b Release of the SCAN Parties by California Subject to the exceptions in
Paragraph 6 (concerning excluded claims) below and conditioned upon SCANs full payment of
the Settlement Amount California releases the SCAN Parties from any civil or administrative
6
monetary cl~im California has for the Covered Conduct under the California False Claims Act
Cal Government Codesectsect 12650-12656 or the common law theories of breach of contract
recoupment unlawful payment legally unauthorized payment payment by mistake unjust
enrichment and fraud
5 Reservation of Rights to Administrative Actions
a OIG-HHS Reservation of Rights OIG-HHS expressly reserves all rights
to institute to direct or to maintain any administrative action seeking exclusion against the
SCAN Parties andor their respective officers directors and employees from Medicare
Medicaid or other Federal health care programs as defined in 42 USC sect 1320a-7b(f) under 42
USC sect 1320a-7(a) (mandatory exclusion) or 42 USC sect 1320a-7(b) (permissive exclusion)
b Release of Administrative Actions by California In consideration of the
obligations of the SCAN Parties in this Agreement and SCANs full payment of the Settlement
Amount California agrees to release the SCAN Parties from and to refrain from instituting
directing or maintaining against the SCAN Parties any administrative action seeking permissive
exclusion from Medi-Cal for the Covered Conduct California expressly reserves all rights to
comply with any mandatory statutory obligations to suspend or exclude the SCAN Parties from
Medi-Cal or any other program based upon the Covered Conduct
6 Exceptions to the Governments Releases Notwithstanding the releases given in
this Agreement or any other term of this Agreement the following claims of the Governments
are specifically reserved and are not released
a Any liability arising under Title 26 US Code (Internal Revenue Code) or
under Californias Taxation and Revenue Code
7
b Any criminal liability
c Except as explicitly stated in this Agreement any administrative liability
including mandatory exclusion from Federal or state health care programs
d Any liability to the United States (or its agencies) or to California (or its
agencies) for any conduct other than (1) the Covered Conduct and (2) the conduct alleged as to
the SCAN Parties in Relators Complaints in the Civil Action subject to the agreed construction
set forth in Paragraph 3 of this Agreement of the Seventh Claim for Relief in the Second and
Third Amended Complaints and subject to subparagraph (e) below
e Except as set forth in Paragraph C2 of this Agreement any liability
arising under the Ninth Claim for Relief in the Third Amended Complaint
f Any liability based upon obligations created by this Agreement
g Any liability for express or implied warranty claims or other claims for
defective or deficient products or services including quality of goods and services
h Any liability for failure to deliver goods or services due
1 Any liability for personal injury or property damage or for other
consequential damages arising from the Covered Conduct
J Any liability of individuals
k Any liability for SCANs receipt of payments from Medi-Cal for services
to beneficiaries who were receiving similar services from counties through the In-Home Support
Services Program (IHSS)
1 Any liability for SCANs certifications of required nursing facility levels of
care made on or after January 1 2009
8
7 Release of the SCAN Parties by Relator In consideration of the obligations of the
SCAN Parties in this Agreement~ conditioned upon the full payment of the Settlement Amount
Relator for himself and for his heirs successors attorneys agents and assigns agrees to
generally release acquit waive and forever discharge the SCAN Parties and all the current and
former officers and directors employees agents attorneys owners and shareholders of the
SCAN Parties from any and all rights claims expenses debts liabilities demands obligations
costs damages injuries actions and causes of action of every nature whether known or
unknown suspected or unsuspected in law or in equity from the beginning of the world to the
day of these presents including but not limited to those he advanced or could have advanced in
the Civil Action or otherwise under the False Claims Act 31 USC sectsect 3729-3733 for expenses
or attorneys fees and costs under 31 USC sect 3730(h) or under 31 USC sect 3730(h) for
employment decisions by the SCAN Parties under the California False Claims Act Cal
Government Codesectsect 12650-12656 andor other statutory or common law doctrines of payment
by mistake unjust enrichment breach of contract fraud or the like except however that
Relator does not release the aforesaid persons and entities from any liability they may have for
payment of Relators expenses attorneys fees and costs if any under 31 USC sect 3730(d)(l)
and California Government Code sect 12652(g)(8) Except for the foregoing exception the
foregoing sentence is intended to be interpreted as a general release Furthermore except for the
foregoing exception Relator covenants not to sue the SCAN Parties its current and former
officers and directors employees agents attorneys and shareholders of the SCAN Parties witli
respect to any and all rights claims expenses debts liabilities demands obligations costs
damages injuries actions and causes of action of every nature whether known or unknown
9
suspected or unsuspected in law or in equity including those for attorneys fees and costs arising
prior to the Effective Date ofthis Agreement and not covered by 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(8)
8 Release of the Governments by the SCAN Parties The SCAN Parties fully and
finally release the Governments and their respective agencies officers agents employees and
servants from any claims (including attorneys fees costs and expenses of every kind and
however denominated) that the SCAN Parties have asserted could have asserted or may assert in
the future against the Governments and their respective agencies officers agents employees
and servants related to or arising out of the Covered Conduct the Civil Action the
Governments investigation of the Covered Conduct and the Civil Action and any ensuing civil
prosecution
9 This Agreement is Fair Adequate and Reasonable Relator and his heirs
successors attorneys agents and assigns do not and shall not object to this Agreement and
instead agree and confirm that this Agreement and the settlement effectuated herein are fair
adequate and reasonable under all ofthe circumstances pursuant to 31 USC sect 3730(c)(2)(B)
and California Government Codesect 12652(e)(2)(B) The Governments and Relator and his heirs
successors attorneys agents and assigns agree that they each retain all of their rights on the
issue of the share percentage if any that Relator should receive of any proceeds of the settlement
of his claims and that no agreements concerning any Relator share have been reached to date
The Governments and Relator and his heirs successors attorneys agents and assigns agree that
neither this Agreement nor any part of it nor any intervention by the United States andor
California in the Civil Action in order to dismiss the Civil Action or for any other purpose nor
10
any dismissal of the Civil Action nor any other circumstance (1) shall waive or otherwise affect
the ability of the Governments to contend that Relator is barred from sharing in any or all of the
proceeds of this Agreement or to contend that some or all of the Covered Conduct alleged in the
Recitals paragraph C of this Agreement is not alleged in Relators Complaints in the Civil
Action or (2) shall waive or otherwise affect Relators ability to contend that he should share in
any or all of the proceeds of this Agreement or to contend that some or all of the Covered
Conduct alleged in the Recitals paragraph C of this Agreement is alleged in Relators
Complaints in the Civil Action
10 Double Jeopardy and Excessive Fines Clauses The SCAN Parties waive and
shall not assert any defenses they may have to any criminal prosecution or administrative action
relating to the Covered Conduct that may be based in whole or in part on a contention that under
the Double Jeopardy Clause in the Fifth Amendment ofthe United States Constitution the
Excessive Fines Clause in the Eighth Amendment of the United States Constitution or under
Article 1 sections 15 and 24 of the California Constitution this Agreement bars a remedy sought
in such criminal prosecution or administrative action
11 No Characterization of Settlement Amount for the Purpose of Internal Revenue
Laws Nothing in the preceding Paragraph or in any provision of this Agreement constitutes an
agreement by the United States concerning the characterization of the Settlement Amount for
purposes ofthe Internal Revenue laws Title 26 of the United States Code
12 Denial of Claims The Settlement Amount shall not be decreased as a result of
the denial of claims for payment now being withheld from payment by any Medicare carrier or
intermediary or any state payer related to the Covered Conduct and the SCAN Parties agree not
11
to resubmit to any Medicare carrier or intermediary or any state payer any previously denied
claims related to the Covered Conduct and agree not to appeal any such denials of claims
13 Unallowable Costs The SCAN Parties agree to the following
a Unallowable Costs Defined All costs (as defined in the Federal
Acquisition Regulation 48 CFR sect 31205-47 and in Titles XVIII and XIX ofthe Social
Security Act 42 USC sectsect 1395-1395kkk-1 and 1396-1396w-5 and the regulations and official
program directives promulgated thereunder) incurred by or on behalf of the SCAN Parties andor
by their respective present or former officers directors employees shareholders and agents in
connection with
(1) the matters covered by this Agreement
(2) the Governments audit(s) and civil and any criminal
investigation(s) of any of the matters covered by this Agreement
(3) the SCAN Parties investigation defense and corrective actions
undertaken in response to the Governments audit(s) and civil and any
criminal investigation(s) in connection with the matters covered by this
Agreement (including attorneys fees)
(4) the negotiation and performance of this Agreement and
(5) the payment SCAN makes to the Governments pursuant to this
Agreement and any payments that the SCAN Parties may make to Relator
including costs and attorneys fees
are unallowable costs for government contracting purposes and under the Medicare Program
Medicaid Program TRICARE Program and Federal Employees Health Benefits Program
12
(FEHBP) or any other federal or state program (hereinafter referred to as Unallowable Costs)
b Future Treatment of Unallowable Costs Unallowable Costs shall be
separately determined and accounted for in nonreimbursable cost centers by the SCAN Parties
and the SCAN Parties shall not charge such Unallowable Costs directly or indirectly to any
contracts with the United States California or any state Medicaid program or seek payment for
such Unallowable Costs through any cost report cost statement information statement or
payment request submitted by the SCAN Parties or any of their respective subsidiaries or
affiliates to the Medicare Medicaid TRICARE or FEHBP Programs or to any other federal or
state program
c Treatment of Unallowable Costs Previously Submitted for Payment The
SCAN Parties further agree that within 90 days of the Effective Date of this Agreement they shall
identify to applicable Medicare and TRICARE fiscal intermediaries carriers andor contractors
and Medicaid and FEHBP fiscal agents any Unallowable Costs included in payments previously
sought from the United States California or any state Medicaid program including but not
limited to payments sought in any cost reports cost statements information reports or payment
requests already submitted by the SCAN Parties or any of their respective subsidiaries or
affiliates and shall request and agree that such cost reports cost statements information
reports or payment requests even if already settled be adjusted to account for the effect of the
inclusion of the unallowable costs The SCAN Parties agree that the Governments at a
minimum shall be entitled to recoup from them any overpayment plus applicable interest and
penalties as a result of the inclusion of such Unallowable Costs on previously-submitted cost
reports information reports cost statements or requests for payment
13
Any payments due after the adjustments have been made shall be paid to the
Governments pursuant to the direction of the United States Department of Justice andor the
affected agencies The Governments reserve their rights to disagree with any calculations
submitted by the SCAN Parties or any of their respective subsidiaries or affiliates on the effect of
inclusion of Unallowable Costs (as defined in this Paragraph) on the SCAN Parties or any of
their respective subsidiaries or affiliates cost reports cost statements or information reports
d Nothing in this Agreement shall constitute a waiver of the rights of the
Governments to audit examine or re-examine the SCAN Parties books and records to determine
that no Unallowable Costs have been claimed in accordance with the provisions of this
Paragraph
14 Benefit of the Parties This Agreement is intended to be for the benefit ofthe
Parties only The Parties do not release any claims against any other person or entity except to
the extent provided for in the Paragraph immediately below (waiver for beneficiaries Paragraph)
15 Waiver for Health Care Beneficiaries The SCAN Parties agree that they waive
and shall not seek payment for any of the health care billings covered by this Agreement from
any health care beneficiaries or their parents sponsors legally responsible individuals or third
party payors based upon the claims defined as Covered Conduct
16 Financial Condition SCAN warrants that it has reviewed its financial situation
and that it currently is solvent within the meaning of 11 USC sectsect 547(b)(3) and
548(a)(l)(B)(ii)(I) and shall remain solvent following payment to the Governments ofthe
Settlement Amount Further the Parties warrant that in evaluating whether to execute this
Agreement they (a) have intended that the mutual promises covenants and obligations set forth
14
constitute a contemporaneous exchange for new value given to SCAN within the meaning of 11
USC sect 547(c)(1) and (b) conclude that these mutual promises covenants and obligations do
in fact constitute such a contemporaneous exchange Further the Parties warrant that the mutual
promises covenants and obligations set forth herein are intended to and do in fact represent a
reasonably equivalent exchange of value that is not intended to hinder delay or defraud any
entity to which SCAN was or became indebted to on or after the date of this transfer within the
meaning of 11 USC sect 548(a)(l)
17 Costs With the exception ofRelators expenses attorneys fees and costs if any
under 31 USC sect 3730(d)(1) and California Government Codesect 12652(g)(8) each Party shall
bear its and his own legal and other costs fees and expenses incurred in connection with this
matter including the preparation and performance of this Agreement
18 Governing Law This Agreement is governed by the laws of the United States
The exclusive jurisdiction and venue for any dispute relating to this Agreement is the United
States District Court for the Central District of California
19 Voluntary Agreement Each Party represents that it and he freely voluntarily
knowingly and deliberately enters into this Agreement without any degree of duress
compulsion or misconduct by any of the Parties
20 No Representations Outside this Agreement Each of the Parties acknowledges
that except as expressly set forth in this Agreement no representations of any kind or character
have been made by any other party or that partys ~gents representatives or attorneys to induce
execution or delivery of this Agreement
21 Agreement Drafted by All Parties This Agreement shall be deemed to have been
15
drafted by all Parties to this Agreement and therefore shall not be construed against any Party for
reasons of drafting
22 Complete Agreement This Agreement constitutes the entire agreement of the
Parties with respect to the subject matter of this Agreement and may not be modified amended
or terminated except by a written agreement signed by the Parties specifically referring to this
Agreement and its relevant portions
23 The SCAN Parties Successors etc This Agreement is binding on the SCAN
Parties respective successors transferees and assigns
24 Relators Successors etc This Agreement is binding on Relators successors
transferees heirs and assigns
25 Disclosure All Parties consent to the Governments disclosure of this Agreement
and information about this Agreement to the public
26 Headings The headings in this Agreement are for convenience only do not
constitute a part of this Agreement and shall not limit or affect any of its provisions
27 Capacity to Execute The undersigned counsel represent and warrant that they are
fully authorized to execute this Agreement on behalf of the persons and entities indicated below
The Relator represents that he has the full power authority and competence necessary to enter
into this Agreement
28 Counterparts and Facsimiles This Agreement may be executed in counterparts
each of which constitutes an original and all of which constitute one and the same Agreement
Facsimiles of signatures shall constitute acceptable binding signatures for purposes of this
Agreement
16
29 Effective Date This Agreement is effective on the date of signature of the last
signatory to the Agreement (Effective Date of this Agreement)
In Witness Whereof the Parties through their duly authorized representatives hereunder
set their hands
THE UNITED STATES OF AMERICA
DATED WQ_Qf)_
DATED ~Itk)2shy
DATED_____
Assistant United States Attorney Central District of California
JOHN E LEE Assistant United States Attorney Central District of California
BY __________________
GREGORY E DEMSKE Chief Counsel to the Inspector General Office of Counsel to the Inspector General Office of Inspector General United States Department of Health and Human Services
17
29 Effective Date This Agreement is effective on the date of signature of the last
signatory to the Agreement (Effective Date ofthis Agreement)
In Witness Whereof the Parties through their duly authorized representatives hereunder
set their hands
DATED_____
DATED_____
DATED~
THE UNITED STAT_ES OF AMERlCA
BY ___________________ SUSAN R HERSHMAN Assistant United States Attorney Central District of California
BY -------------------------shyJOHNELEE Assistant United States Attorney
Central District of~
BY __~~~==---~--------------------------GREGORY E DEMSKE Chief Counsel to the Inspector General Office of Counsel to the Inspector General Office of Inspector General United States Department of Health and Human Services
17
--------------
THE STATE OF CALIFORNIA
l 3o)l~ BY __L_~_J_y~----DATED I
B~ V FRANKEL Supervising Deputy Attorney General State of California
DATED---____ BY ___________________________
LORA FOX MARTIN Deputy Attorney General State of California
BY ___________________________DATED_____ TOBY BOUGLAS
Director Department ofHealth Care Services
SCANHEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP B DEFENDANTS
BY ____________________________DATED____ ______ of SCAN Health Plan
DATED____ BY of Senior Care Action Network
----~
BY _______________________ middot DATED-middotmiddot_____ ________ of SCAN Group
18
------
THE STATE OF CALIFORNIA
BY ____________________________DATED_____ BRIAN V FRANKEL Supervising Deputy Attorney General State of California
DATED 1fetz_ ~I B~~~
LO FOX MARTIN Deputy Attorney General State of California
BY _________________________DATED_____ TOBY DOUGLAS
Director Department of Health Care Services
SCANHEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP B DEFENDANTS
DATED____ BY ______________~---------------- of SCAN Health Plan
BYDATEDmiddot--- shy --------~-----of Senior Care Action Network
BY _________________________DATED---_____ _______ of SCAN Group
18
middot THE STATEOF CALIFORNIA
DATED_------- BY _____~-----~------------BRIAN V FRANKEL Supervising DeputY Attorney General State of California
DATED______ BY __~----~-----------------LORA FOX MARTIN Deputy Attorney General State of California
lt)iy middot~~ gt c
~~DOUGLAS 7) middot Director
Department ofHealth Care Services
SCAN HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP DEFENDANTS
BY ________________________~DATED____
--~--- of SCAN Health Plan
DATED____ BY __________~----------of Senior Care Action Network middot------
DATED_____ BY _______________________ _ _______ of scAN Groupmiddot
18
THE STATE OF CALIFORNIA
DATED_____ BY ____________________________
BRIANV FRANKEL Supervising Deputy Attorney General State of California
DATED_____ BY ____________________________
LORA FOX MARTIN Deputy Attorney General State of California
BY ___________________________DATED_____
TOBY DOUGLAS Director Department of Health Care Services
SCAN HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP DEFENDANTS
BY _______lC-----~-----r--~~----------~~ealthPian
BY
BY
18
DATED dz
R GER S GOLDMAN Latham amp Watkins counsel for SCAN Health Plan Senior Care Action Network ann Scan Group
JAM~S Mmiddot S)YQBEN -RELATOR
DATED____ BY ____~--~----~~--- JAMES M SWOSEN
Approved as to form and contellt
DATED_~~__ BY -------=~----------WILLIAM HANAGAMI
The Hanagami Law Firm A Professional Corporation Counsel fDr James M Swoben
19
DATED____ BY _______________ DAVID J SCHINDLER Latham amp Watk1ns Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
DATED_____ BY _______________________
ROGERS GOLDMAN Latham amp Watkins Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
JAMES M SWOBEN- RELATOR
DATED9-() to1---BYbull ~~ JAMES M SWOBEN
(
Approved as to form and content
L ~ ~middotmiddotmiddot- BY middott I amp -middot-- - ____ DATED 1 5t I C ( vbull 7 1bull lr-~A7AGAJ11 The Hanagami Law Firm A Professional Corporation Counsel for James M Swoben
DATED______ BY ABRAM J ZINBERG Counsel for James M Swoben
19
Exhibit 1
20
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 90012 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel [UNDER SEAL] ) NOTICE OF [SEALED] AND
) [PROPOSED]ORDERTHEREON Plaintiffs )
) [LODGED UNDER SEAL v ) pursuant to the False Claim Act
) 31 USC sect 3730(b)(2) and (3)] [UNDER SEAL] )
) [CAPTION ALSO MAY DESIGNATE (Caption continued on next page) ) OTHER DOCUMENTS FILED OR
) LODGED CONCURRENTLY]
21
Defendants )
22
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 900 12 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel ) JAMES M SWOBEN ) NOTICE OF DISMISSAL OF ALL
Plaintiffs ) CLAIMS AGAINST DEFENDANTS v ) SCAN HEALTH PLAN SENIOR
SCAN HEALTH PLAN a California ) CARE ACTION NETWORK AND corporation fka SENIOR CARE ) SCAN GROUP PURSUANT TO ACTION NETWORK SENIOR CARE ) SETTLEMENT AGREEMENT ACTION NETWORK a business entity) CONSENTS OF THE UNITED (Caption continued on next page) ) STATES AND STATE OF form unknown SCAN GROUP a ) CALIFORNIA ATTORNEYS
23
California corporation [NAMES OF ) GENERAL THERETO AND REMAINING DEFENDANTS ) [PROPOSED]ORDERTHEREON SEALED] )
Defendants ) [LODGED UNDER SEAL ) pursuant to the False Claim Act
31 USC sect 3730(b)(2) and (3)]
[CAPTION ALSO MAY DESIGNATE OTHER DOCUMENTS FILED OR LODGED CONCURRENTLY]
Pursuant to Rule 4l(a) of the Federal Rules of Civil Procedure and subject to
and in order to effectuate the settlement agreement among
the Relator James M Swoben (Relator) Defendants SCAN Health Plan
Senior Care Action Network and SCAN Group (collectively the SCAN
Defendants) and the United States of America and the State of California
(collectively the Governments)
the Relator hereby upon the Order of the Court herein
Dismisses all claims for relief and causes of action filed in the above-
captioned action against Defendants SCAN HEALTH PLAN SENIOR CARE
ACTION NETWORK and SCAN GROUP said dismissal being (a) with
prejudice as to the Relator (b) without prejudice to the United States of America as
to the Ninth Claim for Relief of the Third Amended Complaint and (c) with
prejudice to the Governments as to all other claims for relief and causes of action in
all Complaints filed in the above-captioned action against Defendants SCAN
HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP to
the extent that those claims for relief and causes of action are or purport to be filed
pursuant to the False Claims Act 31 USC sect 3729 et seq and the California False
Claims Act California Government Codesect 12650 et seq
Except that the Relator does not dismiss the Relators claim for a relators
share to be paid by the Governments pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(2) As to this claim the Relator
respectfully requests that the Court retain jurisdiction to determine if necessary the
relators share that the Relator should obtain pursuant to 31 USC sect 3730( d)(l) and
California Government Codesect 12652(g)(2) and
Except that the Relator does not dismiss the Relators claim for payment by
any and all of the SCAN Defendants to the Relator of expenses fees and costs
pursuant to 31 USC sect 3730(d)(l) and California Government Code
sect 12652(g)(8) As to this claim the Relator respectfully requests that the Court
retain jurisdiction to determine if necessary the appropriate expenses fees and
25
costs that the Relator should obtain pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(8)
Respectfully submitted
DATED _____ 2012 WILLIAM HANAGAMI ESQ The Hanagami Law Firm
ABRAM J ZINBERG ESQ Attorney at Law
WILLIAM HANAGAMI ESQ Attorneys for Relator JAMES M SWOBEN
26
CONSENT OF THE ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA
Pursuant to 31 USC sect 3730(b )(1) the Attorney General of the United
States of America by and through the undersigned consents to the foregoing
dismissal The reason for the consent of the Attorney General is that the dismissal
is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED _____ 2012 ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section
JOHN E LEE Assistant United States Attorney
Attorneys for the UNITED STATES OF AMERICA
CONSENT OF THE ATTORNEY GENERAL
OF THE STATE OF CALIFORNIA
Pursuant to California Government Codesect 12652(c)(1) the Attorney
General of the State of California by and through the undersigned consents to the
foregoing dismissal The reason for the consent of the Attorney General is that the
dismissal is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED 2012 ---- shy KAMALA D HARRIS Attorney General of California BRIAN V FRANKEL Supervising Deputy Attorney General
LORA FOX MARTIN Deputy Attorney General
Attorneys for the STATE OF CALIFORNIA
IT IS SO ORDERED
This ____ day of _____ 2012
UNITED STATES DISTRICT JUDGE
28
the SCAN coding consultants had identified and that the physicians had not identified As to the
diagnosis codes that the physicians had previously identified but that the SCAN coding
consultants had failed to identify SCAN failed to inform CMS that such codes might have
needed to be withdrawn from SCANs prior submissions to CMS for the Encounters Had SCAN
provided that information to CMS Medicare Part Cs capitated rate payments to SCAN based on
the Encounters allegedly would have been lower than theywere
D In addition on July 13 2009 pursuant to the qui tam provisions of the False
Claims Act 31 USC sect 3730(b) and the California False Claims Act California Government
Codesect 12652(c) James M Swoben (Relator) filed a qui tam action against the SCAN Parties
and other defendants in the United States District Court for the Central District of California
captioned United States ofAmerica and State ofCalifornia ex rei James M Swoben v Scan
Health Plan Senior Care Action Network Scan Group and [names ofremaining defendants
sealed CV 09-5013 JFW (the Civil Action)
E The SCAN Parties deny the allegations of the Governments and of Relator This
Settlement Agreement is neither an admission of liability by the SCAN Parties nor a concession
by the Governments that their claims are not well founded
To avoid the delay uncertainty inconvenience and expense of protracted litigation of the
foregoing claims and in consideration of the mutual promises and obligations ofthis Agreement
the Parties agree and covenant as follows
TERMS AND CONDITIONS
1 Payment to the Governments No later than ten (1 0) days after the Effective Date
of this Agreement SCAN shall pay to the Governments $32200000000 plus interest on that
4
Amount at a rate of 1875 percent per year from May 1 2012 (handshake interest) (collectively
the Settlement Amount) as follows $13251282500 plus handshake interest to the United
States by electronic funds transfer pursuant to written instructions to be provided by the United
States Attorney for the Central District of California and $18948717500 plus handshake
interest to California pursuant to written instructions to be provided by the California Attorney
Generals Office
2 Relators Statutory Expenses Attorneys Fees and Costs The SCAN Parties and
Relator will resolve the issue of Relators expenses attorneys fees and costs if any under 31
USC sect 3730(d)(1) and California Government Codesect 12652(g)(8) separately from this
Agreement The SCAN Parties and Relator and his heirs successors attorneys agents and
assigns agree that they each retain all of their rights on that issue and that no agreements
concerning that issue have been reached to date
3 Dismissal of the Civil Action Upon receipt of the payment described in
Paragraph 1 above the Governments and Relator shall promptly sign a Notice of Dismissal of
All Claims Against Defendants SCAN Health Plan Senior Care Action Network and SCAN
Group Pursuant to Settlement Agreement Consents ofthe United States and State of California
Attorneys General Thereto and [Proposed] Order Thereon (Notice of Dismissal) in the form
attached hereto as Exhibit 1 The United States and California shall also sign a notice of their
decision to intervene in the Civil Action except as to the Ninth Claim for Relief of the Third
Amended Complaint as to which the United States shall decline to intervene The United States
shall then promptly file andor lodge with the Court adjudicating the Civil Action the aforesaid
signed notice of intervention and declination and the aforesaid signed Notice of Dismissal The
5
Parties agree that if the two said documents are filed concurrently the said Notice of Dismissal
shall be deemed to have been filed after the said notice of intervention and declination For
purposes of any action claim proceeding or dispute other than the Civil Action brought or
asserted by the United States or on behalf of the United States by any qui tam relator other than
Relator SCAN Senior Care Action Network and Scan Group (1) construe the Seventh Claim
for Relief of the Second Amended Complaint in the Civil Action to include solely paragraphs 84
through 87 thereof inclusive and (2) construe the Seventh Claim for Relief of the Third
Amended Complaint in the Civil Action to include solely paragraphs 88 through 91 thereof
inclusive
4 The Governments Releases of the SCAN Parties
a Release of the SCAN Parties by the United States Subject to the
exceptions in Paragraph 6 (concerning excluded claims) below and conditioned upon SCANs
full payment of the Settlement Amount the United States releases the SCAN Parties from any
civil or administrative monetary claim the United States has for the Covered Conduct under the
False Claims Act 31 USC sect 3729-3733 both pre-amendment and as amended by the Fraud
Enforcement and Recovery Act of2009 Pub L 111-21 123 Stat 1617 (2009) the Civil
Monetary Penalties Law 42 USC sect 1320a-7a the Program Fraud Civil Remedies Act 31
USC sectsect 3801-3812 or the common law theories of breach of contract recoupment unlawful
payment legally unauthorized payment payment by mistake unjust enrichment and fraud
b Release of the SCAN Parties by California Subject to the exceptions in
Paragraph 6 (concerning excluded claims) below and conditioned upon SCANs full payment of
the Settlement Amount California releases the SCAN Parties from any civil or administrative
6
monetary cl~im California has for the Covered Conduct under the California False Claims Act
Cal Government Codesectsect 12650-12656 or the common law theories of breach of contract
recoupment unlawful payment legally unauthorized payment payment by mistake unjust
enrichment and fraud
5 Reservation of Rights to Administrative Actions
a OIG-HHS Reservation of Rights OIG-HHS expressly reserves all rights
to institute to direct or to maintain any administrative action seeking exclusion against the
SCAN Parties andor their respective officers directors and employees from Medicare
Medicaid or other Federal health care programs as defined in 42 USC sect 1320a-7b(f) under 42
USC sect 1320a-7(a) (mandatory exclusion) or 42 USC sect 1320a-7(b) (permissive exclusion)
b Release of Administrative Actions by California In consideration of the
obligations of the SCAN Parties in this Agreement and SCANs full payment of the Settlement
Amount California agrees to release the SCAN Parties from and to refrain from instituting
directing or maintaining against the SCAN Parties any administrative action seeking permissive
exclusion from Medi-Cal for the Covered Conduct California expressly reserves all rights to
comply with any mandatory statutory obligations to suspend or exclude the SCAN Parties from
Medi-Cal or any other program based upon the Covered Conduct
6 Exceptions to the Governments Releases Notwithstanding the releases given in
this Agreement or any other term of this Agreement the following claims of the Governments
are specifically reserved and are not released
a Any liability arising under Title 26 US Code (Internal Revenue Code) or
under Californias Taxation and Revenue Code
7
b Any criminal liability
c Except as explicitly stated in this Agreement any administrative liability
including mandatory exclusion from Federal or state health care programs
d Any liability to the United States (or its agencies) or to California (or its
agencies) for any conduct other than (1) the Covered Conduct and (2) the conduct alleged as to
the SCAN Parties in Relators Complaints in the Civil Action subject to the agreed construction
set forth in Paragraph 3 of this Agreement of the Seventh Claim for Relief in the Second and
Third Amended Complaints and subject to subparagraph (e) below
e Except as set forth in Paragraph C2 of this Agreement any liability
arising under the Ninth Claim for Relief in the Third Amended Complaint
f Any liability based upon obligations created by this Agreement
g Any liability for express or implied warranty claims or other claims for
defective or deficient products or services including quality of goods and services
h Any liability for failure to deliver goods or services due
1 Any liability for personal injury or property damage or for other
consequential damages arising from the Covered Conduct
J Any liability of individuals
k Any liability for SCANs receipt of payments from Medi-Cal for services
to beneficiaries who were receiving similar services from counties through the In-Home Support
Services Program (IHSS)
1 Any liability for SCANs certifications of required nursing facility levels of
care made on or after January 1 2009
8
7 Release of the SCAN Parties by Relator In consideration of the obligations of the
SCAN Parties in this Agreement~ conditioned upon the full payment of the Settlement Amount
Relator for himself and for his heirs successors attorneys agents and assigns agrees to
generally release acquit waive and forever discharge the SCAN Parties and all the current and
former officers and directors employees agents attorneys owners and shareholders of the
SCAN Parties from any and all rights claims expenses debts liabilities demands obligations
costs damages injuries actions and causes of action of every nature whether known or
unknown suspected or unsuspected in law or in equity from the beginning of the world to the
day of these presents including but not limited to those he advanced or could have advanced in
the Civil Action or otherwise under the False Claims Act 31 USC sectsect 3729-3733 for expenses
or attorneys fees and costs under 31 USC sect 3730(h) or under 31 USC sect 3730(h) for
employment decisions by the SCAN Parties under the California False Claims Act Cal
Government Codesectsect 12650-12656 andor other statutory or common law doctrines of payment
by mistake unjust enrichment breach of contract fraud or the like except however that
Relator does not release the aforesaid persons and entities from any liability they may have for
payment of Relators expenses attorneys fees and costs if any under 31 USC sect 3730(d)(l)
and California Government Code sect 12652(g)(8) Except for the foregoing exception the
foregoing sentence is intended to be interpreted as a general release Furthermore except for the
foregoing exception Relator covenants not to sue the SCAN Parties its current and former
officers and directors employees agents attorneys and shareholders of the SCAN Parties witli
respect to any and all rights claims expenses debts liabilities demands obligations costs
damages injuries actions and causes of action of every nature whether known or unknown
9
suspected or unsuspected in law or in equity including those for attorneys fees and costs arising
prior to the Effective Date ofthis Agreement and not covered by 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(8)
8 Release of the Governments by the SCAN Parties The SCAN Parties fully and
finally release the Governments and their respective agencies officers agents employees and
servants from any claims (including attorneys fees costs and expenses of every kind and
however denominated) that the SCAN Parties have asserted could have asserted or may assert in
the future against the Governments and their respective agencies officers agents employees
and servants related to or arising out of the Covered Conduct the Civil Action the
Governments investigation of the Covered Conduct and the Civil Action and any ensuing civil
prosecution
9 This Agreement is Fair Adequate and Reasonable Relator and his heirs
successors attorneys agents and assigns do not and shall not object to this Agreement and
instead agree and confirm that this Agreement and the settlement effectuated herein are fair
adequate and reasonable under all ofthe circumstances pursuant to 31 USC sect 3730(c)(2)(B)
and California Government Codesect 12652(e)(2)(B) The Governments and Relator and his heirs
successors attorneys agents and assigns agree that they each retain all of their rights on the
issue of the share percentage if any that Relator should receive of any proceeds of the settlement
of his claims and that no agreements concerning any Relator share have been reached to date
The Governments and Relator and his heirs successors attorneys agents and assigns agree that
neither this Agreement nor any part of it nor any intervention by the United States andor
California in the Civil Action in order to dismiss the Civil Action or for any other purpose nor
10
any dismissal of the Civil Action nor any other circumstance (1) shall waive or otherwise affect
the ability of the Governments to contend that Relator is barred from sharing in any or all of the
proceeds of this Agreement or to contend that some or all of the Covered Conduct alleged in the
Recitals paragraph C of this Agreement is not alleged in Relators Complaints in the Civil
Action or (2) shall waive or otherwise affect Relators ability to contend that he should share in
any or all of the proceeds of this Agreement or to contend that some or all of the Covered
Conduct alleged in the Recitals paragraph C of this Agreement is alleged in Relators
Complaints in the Civil Action
10 Double Jeopardy and Excessive Fines Clauses The SCAN Parties waive and
shall not assert any defenses they may have to any criminal prosecution or administrative action
relating to the Covered Conduct that may be based in whole or in part on a contention that under
the Double Jeopardy Clause in the Fifth Amendment ofthe United States Constitution the
Excessive Fines Clause in the Eighth Amendment of the United States Constitution or under
Article 1 sections 15 and 24 of the California Constitution this Agreement bars a remedy sought
in such criminal prosecution or administrative action
11 No Characterization of Settlement Amount for the Purpose of Internal Revenue
Laws Nothing in the preceding Paragraph or in any provision of this Agreement constitutes an
agreement by the United States concerning the characterization of the Settlement Amount for
purposes ofthe Internal Revenue laws Title 26 of the United States Code
12 Denial of Claims The Settlement Amount shall not be decreased as a result of
the denial of claims for payment now being withheld from payment by any Medicare carrier or
intermediary or any state payer related to the Covered Conduct and the SCAN Parties agree not
11
to resubmit to any Medicare carrier or intermediary or any state payer any previously denied
claims related to the Covered Conduct and agree not to appeal any such denials of claims
13 Unallowable Costs The SCAN Parties agree to the following
a Unallowable Costs Defined All costs (as defined in the Federal
Acquisition Regulation 48 CFR sect 31205-47 and in Titles XVIII and XIX ofthe Social
Security Act 42 USC sectsect 1395-1395kkk-1 and 1396-1396w-5 and the regulations and official
program directives promulgated thereunder) incurred by or on behalf of the SCAN Parties andor
by their respective present or former officers directors employees shareholders and agents in
connection with
(1) the matters covered by this Agreement
(2) the Governments audit(s) and civil and any criminal
investigation(s) of any of the matters covered by this Agreement
(3) the SCAN Parties investigation defense and corrective actions
undertaken in response to the Governments audit(s) and civil and any
criminal investigation(s) in connection with the matters covered by this
Agreement (including attorneys fees)
(4) the negotiation and performance of this Agreement and
(5) the payment SCAN makes to the Governments pursuant to this
Agreement and any payments that the SCAN Parties may make to Relator
including costs and attorneys fees
are unallowable costs for government contracting purposes and under the Medicare Program
Medicaid Program TRICARE Program and Federal Employees Health Benefits Program
12
(FEHBP) or any other federal or state program (hereinafter referred to as Unallowable Costs)
b Future Treatment of Unallowable Costs Unallowable Costs shall be
separately determined and accounted for in nonreimbursable cost centers by the SCAN Parties
and the SCAN Parties shall not charge such Unallowable Costs directly or indirectly to any
contracts with the United States California or any state Medicaid program or seek payment for
such Unallowable Costs through any cost report cost statement information statement or
payment request submitted by the SCAN Parties or any of their respective subsidiaries or
affiliates to the Medicare Medicaid TRICARE or FEHBP Programs or to any other federal or
state program
c Treatment of Unallowable Costs Previously Submitted for Payment The
SCAN Parties further agree that within 90 days of the Effective Date of this Agreement they shall
identify to applicable Medicare and TRICARE fiscal intermediaries carriers andor contractors
and Medicaid and FEHBP fiscal agents any Unallowable Costs included in payments previously
sought from the United States California or any state Medicaid program including but not
limited to payments sought in any cost reports cost statements information reports or payment
requests already submitted by the SCAN Parties or any of their respective subsidiaries or
affiliates and shall request and agree that such cost reports cost statements information
reports or payment requests even if already settled be adjusted to account for the effect of the
inclusion of the unallowable costs The SCAN Parties agree that the Governments at a
minimum shall be entitled to recoup from them any overpayment plus applicable interest and
penalties as a result of the inclusion of such Unallowable Costs on previously-submitted cost
reports information reports cost statements or requests for payment
13
Any payments due after the adjustments have been made shall be paid to the
Governments pursuant to the direction of the United States Department of Justice andor the
affected agencies The Governments reserve their rights to disagree with any calculations
submitted by the SCAN Parties or any of their respective subsidiaries or affiliates on the effect of
inclusion of Unallowable Costs (as defined in this Paragraph) on the SCAN Parties or any of
their respective subsidiaries or affiliates cost reports cost statements or information reports
d Nothing in this Agreement shall constitute a waiver of the rights of the
Governments to audit examine or re-examine the SCAN Parties books and records to determine
that no Unallowable Costs have been claimed in accordance with the provisions of this
Paragraph
14 Benefit of the Parties This Agreement is intended to be for the benefit ofthe
Parties only The Parties do not release any claims against any other person or entity except to
the extent provided for in the Paragraph immediately below (waiver for beneficiaries Paragraph)
15 Waiver for Health Care Beneficiaries The SCAN Parties agree that they waive
and shall not seek payment for any of the health care billings covered by this Agreement from
any health care beneficiaries or their parents sponsors legally responsible individuals or third
party payors based upon the claims defined as Covered Conduct
16 Financial Condition SCAN warrants that it has reviewed its financial situation
and that it currently is solvent within the meaning of 11 USC sectsect 547(b)(3) and
548(a)(l)(B)(ii)(I) and shall remain solvent following payment to the Governments ofthe
Settlement Amount Further the Parties warrant that in evaluating whether to execute this
Agreement they (a) have intended that the mutual promises covenants and obligations set forth
14
constitute a contemporaneous exchange for new value given to SCAN within the meaning of 11
USC sect 547(c)(1) and (b) conclude that these mutual promises covenants and obligations do
in fact constitute such a contemporaneous exchange Further the Parties warrant that the mutual
promises covenants and obligations set forth herein are intended to and do in fact represent a
reasonably equivalent exchange of value that is not intended to hinder delay or defraud any
entity to which SCAN was or became indebted to on or after the date of this transfer within the
meaning of 11 USC sect 548(a)(l)
17 Costs With the exception ofRelators expenses attorneys fees and costs if any
under 31 USC sect 3730(d)(1) and California Government Codesect 12652(g)(8) each Party shall
bear its and his own legal and other costs fees and expenses incurred in connection with this
matter including the preparation and performance of this Agreement
18 Governing Law This Agreement is governed by the laws of the United States
The exclusive jurisdiction and venue for any dispute relating to this Agreement is the United
States District Court for the Central District of California
19 Voluntary Agreement Each Party represents that it and he freely voluntarily
knowingly and deliberately enters into this Agreement without any degree of duress
compulsion or misconduct by any of the Parties
20 No Representations Outside this Agreement Each of the Parties acknowledges
that except as expressly set forth in this Agreement no representations of any kind or character
have been made by any other party or that partys ~gents representatives or attorneys to induce
execution or delivery of this Agreement
21 Agreement Drafted by All Parties This Agreement shall be deemed to have been
15
drafted by all Parties to this Agreement and therefore shall not be construed against any Party for
reasons of drafting
22 Complete Agreement This Agreement constitutes the entire agreement of the
Parties with respect to the subject matter of this Agreement and may not be modified amended
or terminated except by a written agreement signed by the Parties specifically referring to this
Agreement and its relevant portions
23 The SCAN Parties Successors etc This Agreement is binding on the SCAN
Parties respective successors transferees and assigns
24 Relators Successors etc This Agreement is binding on Relators successors
transferees heirs and assigns
25 Disclosure All Parties consent to the Governments disclosure of this Agreement
and information about this Agreement to the public
26 Headings The headings in this Agreement are for convenience only do not
constitute a part of this Agreement and shall not limit or affect any of its provisions
27 Capacity to Execute The undersigned counsel represent and warrant that they are
fully authorized to execute this Agreement on behalf of the persons and entities indicated below
The Relator represents that he has the full power authority and competence necessary to enter
into this Agreement
28 Counterparts and Facsimiles This Agreement may be executed in counterparts
each of which constitutes an original and all of which constitute one and the same Agreement
Facsimiles of signatures shall constitute acceptable binding signatures for purposes of this
Agreement
16
29 Effective Date This Agreement is effective on the date of signature of the last
signatory to the Agreement (Effective Date of this Agreement)
In Witness Whereof the Parties through their duly authorized representatives hereunder
set their hands
THE UNITED STATES OF AMERICA
DATED WQ_Qf)_
DATED ~Itk)2shy
DATED_____
Assistant United States Attorney Central District of California
JOHN E LEE Assistant United States Attorney Central District of California
BY __________________
GREGORY E DEMSKE Chief Counsel to the Inspector General Office of Counsel to the Inspector General Office of Inspector General United States Department of Health and Human Services
17
29 Effective Date This Agreement is effective on the date of signature of the last
signatory to the Agreement (Effective Date ofthis Agreement)
In Witness Whereof the Parties through their duly authorized representatives hereunder
set their hands
DATED_____
DATED_____
DATED~
THE UNITED STAT_ES OF AMERlCA
BY ___________________ SUSAN R HERSHMAN Assistant United States Attorney Central District of California
BY -------------------------shyJOHNELEE Assistant United States Attorney
Central District of~
BY __~~~==---~--------------------------GREGORY E DEMSKE Chief Counsel to the Inspector General Office of Counsel to the Inspector General Office of Inspector General United States Department of Health and Human Services
17
--------------
THE STATE OF CALIFORNIA
l 3o)l~ BY __L_~_J_y~----DATED I
B~ V FRANKEL Supervising Deputy Attorney General State of California
DATED---____ BY ___________________________
LORA FOX MARTIN Deputy Attorney General State of California
BY ___________________________DATED_____ TOBY BOUGLAS
Director Department ofHealth Care Services
SCANHEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP B DEFENDANTS
BY ____________________________DATED____ ______ of SCAN Health Plan
DATED____ BY of Senior Care Action Network
----~
BY _______________________ middot DATED-middotmiddot_____ ________ of SCAN Group
18
------
THE STATE OF CALIFORNIA
BY ____________________________DATED_____ BRIAN V FRANKEL Supervising Deputy Attorney General State of California
DATED 1fetz_ ~I B~~~
LO FOX MARTIN Deputy Attorney General State of California
BY _________________________DATED_____ TOBY DOUGLAS
Director Department of Health Care Services
SCANHEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP B DEFENDANTS
DATED____ BY ______________~---------------- of SCAN Health Plan
BYDATEDmiddot--- shy --------~-----of Senior Care Action Network
BY _________________________DATED---_____ _______ of SCAN Group
18
middot THE STATEOF CALIFORNIA
DATED_------- BY _____~-----~------------BRIAN V FRANKEL Supervising DeputY Attorney General State of California
DATED______ BY __~----~-----------------LORA FOX MARTIN Deputy Attorney General State of California
lt)iy middot~~ gt c
~~DOUGLAS 7) middot Director
Department ofHealth Care Services
SCAN HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP DEFENDANTS
BY ________________________~DATED____
--~--- of SCAN Health Plan
DATED____ BY __________~----------of Senior Care Action Network middot------
DATED_____ BY _______________________ _ _______ of scAN Groupmiddot
18
THE STATE OF CALIFORNIA
DATED_____ BY ____________________________
BRIANV FRANKEL Supervising Deputy Attorney General State of California
DATED_____ BY ____________________________
LORA FOX MARTIN Deputy Attorney General State of California
BY ___________________________DATED_____
TOBY DOUGLAS Director Department of Health Care Services
SCAN HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP DEFENDANTS
BY _______lC-----~-----r--~~----------~~ealthPian
BY
BY
18
DATED dz
R GER S GOLDMAN Latham amp Watkins counsel for SCAN Health Plan Senior Care Action Network ann Scan Group
JAM~S Mmiddot S)YQBEN -RELATOR
DATED____ BY ____~--~----~~--- JAMES M SWOSEN
Approved as to form and contellt
DATED_~~__ BY -------=~----------WILLIAM HANAGAMI
The Hanagami Law Firm A Professional Corporation Counsel fDr James M Swoben
19
DATED____ BY _______________ DAVID J SCHINDLER Latham amp Watk1ns Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
DATED_____ BY _______________________
ROGERS GOLDMAN Latham amp Watkins Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
JAMES M SWOBEN- RELATOR
DATED9-() to1---BYbull ~~ JAMES M SWOBEN
(
Approved as to form and content
L ~ ~middotmiddotmiddot- BY middott I amp -middot-- - ____ DATED 1 5t I C ( vbull 7 1bull lr-~A7AGAJ11 The Hanagami Law Firm A Professional Corporation Counsel for James M Swoben
DATED______ BY ABRAM J ZINBERG Counsel for James M Swoben
19
Exhibit 1
20
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 90012 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel [UNDER SEAL] ) NOTICE OF [SEALED] AND
) [PROPOSED]ORDERTHEREON Plaintiffs )
) [LODGED UNDER SEAL v ) pursuant to the False Claim Act
) 31 USC sect 3730(b)(2) and (3)] [UNDER SEAL] )
) [CAPTION ALSO MAY DESIGNATE (Caption continued on next page) ) OTHER DOCUMENTS FILED OR
) LODGED CONCURRENTLY]
21
Defendants )
22
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 900 12 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel ) JAMES M SWOBEN ) NOTICE OF DISMISSAL OF ALL
Plaintiffs ) CLAIMS AGAINST DEFENDANTS v ) SCAN HEALTH PLAN SENIOR
SCAN HEALTH PLAN a California ) CARE ACTION NETWORK AND corporation fka SENIOR CARE ) SCAN GROUP PURSUANT TO ACTION NETWORK SENIOR CARE ) SETTLEMENT AGREEMENT ACTION NETWORK a business entity) CONSENTS OF THE UNITED (Caption continued on next page) ) STATES AND STATE OF form unknown SCAN GROUP a ) CALIFORNIA ATTORNEYS
23
California corporation [NAMES OF ) GENERAL THERETO AND REMAINING DEFENDANTS ) [PROPOSED]ORDERTHEREON SEALED] )
Defendants ) [LODGED UNDER SEAL ) pursuant to the False Claim Act
31 USC sect 3730(b)(2) and (3)]
[CAPTION ALSO MAY DESIGNATE OTHER DOCUMENTS FILED OR LODGED CONCURRENTLY]
Pursuant to Rule 4l(a) of the Federal Rules of Civil Procedure and subject to
and in order to effectuate the settlement agreement among
the Relator James M Swoben (Relator) Defendants SCAN Health Plan
Senior Care Action Network and SCAN Group (collectively the SCAN
Defendants) and the United States of America and the State of California
(collectively the Governments)
the Relator hereby upon the Order of the Court herein
Dismisses all claims for relief and causes of action filed in the above-
captioned action against Defendants SCAN HEALTH PLAN SENIOR CARE
ACTION NETWORK and SCAN GROUP said dismissal being (a) with
prejudice as to the Relator (b) without prejudice to the United States of America as
to the Ninth Claim for Relief of the Third Amended Complaint and (c) with
prejudice to the Governments as to all other claims for relief and causes of action in
all Complaints filed in the above-captioned action against Defendants SCAN
HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP to
the extent that those claims for relief and causes of action are or purport to be filed
pursuant to the False Claims Act 31 USC sect 3729 et seq and the California False
Claims Act California Government Codesect 12650 et seq
Except that the Relator does not dismiss the Relators claim for a relators
share to be paid by the Governments pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(2) As to this claim the Relator
respectfully requests that the Court retain jurisdiction to determine if necessary the
relators share that the Relator should obtain pursuant to 31 USC sect 3730( d)(l) and
California Government Codesect 12652(g)(2) and
Except that the Relator does not dismiss the Relators claim for payment by
any and all of the SCAN Defendants to the Relator of expenses fees and costs
pursuant to 31 USC sect 3730(d)(l) and California Government Code
sect 12652(g)(8) As to this claim the Relator respectfully requests that the Court
retain jurisdiction to determine if necessary the appropriate expenses fees and
25
costs that the Relator should obtain pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(8)
Respectfully submitted
DATED _____ 2012 WILLIAM HANAGAMI ESQ The Hanagami Law Firm
ABRAM J ZINBERG ESQ Attorney at Law
WILLIAM HANAGAMI ESQ Attorneys for Relator JAMES M SWOBEN
26
CONSENT OF THE ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA
Pursuant to 31 USC sect 3730(b )(1) the Attorney General of the United
States of America by and through the undersigned consents to the foregoing
dismissal The reason for the consent of the Attorney General is that the dismissal
is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED _____ 2012 ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section
JOHN E LEE Assistant United States Attorney
Attorneys for the UNITED STATES OF AMERICA
CONSENT OF THE ATTORNEY GENERAL
OF THE STATE OF CALIFORNIA
Pursuant to California Government Codesect 12652(c)(1) the Attorney
General of the State of California by and through the undersigned consents to the
foregoing dismissal The reason for the consent of the Attorney General is that the
dismissal is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED 2012 ---- shy KAMALA D HARRIS Attorney General of California BRIAN V FRANKEL Supervising Deputy Attorney General
LORA FOX MARTIN Deputy Attorney General
Attorneys for the STATE OF CALIFORNIA
IT IS SO ORDERED
This ____ day of _____ 2012
UNITED STATES DISTRICT JUDGE
28
Amount at a rate of 1875 percent per year from May 1 2012 (handshake interest) (collectively
the Settlement Amount) as follows $13251282500 plus handshake interest to the United
States by electronic funds transfer pursuant to written instructions to be provided by the United
States Attorney for the Central District of California and $18948717500 plus handshake
interest to California pursuant to written instructions to be provided by the California Attorney
Generals Office
2 Relators Statutory Expenses Attorneys Fees and Costs The SCAN Parties and
Relator will resolve the issue of Relators expenses attorneys fees and costs if any under 31
USC sect 3730(d)(1) and California Government Codesect 12652(g)(8) separately from this
Agreement The SCAN Parties and Relator and his heirs successors attorneys agents and
assigns agree that they each retain all of their rights on that issue and that no agreements
concerning that issue have been reached to date
3 Dismissal of the Civil Action Upon receipt of the payment described in
Paragraph 1 above the Governments and Relator shall promptly sign a Notice of Dismissal of
All Claims Against Defendants SCAN Health Plan Senior Care Action Network and SCAN
Group Pursuant to Settlement Agreement Consents ofthe United States and State of California
Attorneys General Thereto and [Proposed] Order Thereon (Notice of Dismissal) in the form
attached hereto as Exhibit 1 The United States and California shall also sign a notice of their
decision to intervene in the Civil Action except as to the Ninth Claim for Relief of the Third
Amended Complaint as to which the United States shall decline to intervene The United States
shall then promptly file andor lodge with the Court adjudicating the Civil Action the aforesaid
signed notice of intervention and declination and the aforesaid signed Notice of Dismissal The
5
Parties agree that if the two said documents are filed concurrently the said Notice of Dismissal
shall be deemed to have been filed after the said notice of intervention and declination For
purposes of any action claim proceeding or dispute other than the Civil Action brought or
asserted by the United States or on behalf of the United States by any qui tam relator other than
Relator SCAN Senior Care Action Network and Scan Group (1) construe the Seventh Claim
for Relief of the Second Amended Complaint in the Civil Action to include solely paragraphs 84
through 87 thereof inclusive and (2) construe the Seventh Claim for Relief of the Third
Amended Complaint in the Civil Action to include solely paragraphs 88 through 91 thereof
inclusive
4 The Governments Releases of the SCAN Parties
a Release of the SCAN Parties by the United States Subject to the
exceptions in Paragraph 6 (concerning excluded claims) below and conditioned upon SCANs
full payment of the Settlement Amount the United States releases the SCAN Parties from any
civil or administrative monetary claim the United States has for the Covered Conduct under the
False Claims Act 31 USC sect 3729-3733 both pre-amendment and as amended by the Fraud
Enforcement and Recovery Act of2009 Pub L 111-21 123 Stat 1617 (2009) the Civil
Monetary Penalties Law 42 USC sect 1320a-7a the Program Fraud Civil Remedies Act 31
USC sectsect 3801-3812 or the common law theories of breach of contract recoupment unlawful
payment legally unauthorized payment payment by mistake unjust enrichment and fraud
b Release of the SCAN Parties by California Subject to the exceptions in
Paragraph 6 (concerning excluded claims) below and conditioned upon SCANs full payment of
the Settlement Amount California releases the SCAN Parties from any civil or administrative
6
monetary cl~im California has for the Covered Conduct under the California False Claims Act
Cal Government Codesectsect 12650-12656 or the common law theories of breach of contract
recoupment unlawful payment legally unauthorized payment payment by mistake unjust
enrichment and fraud
5 Reservation of Rights to Administrative Actions
a OIG-HHS Reservation of Rights OIG-HHS expressly reserves all rights
to institute to direct or to maintain any administrative action seeking exclusion against the
SCAN Parties andor their respective officers directors and employees from Medicare
Medicaid or other Federal health care programs as defined in 42 USC sect 1320a-7b(f) under 42
USC sect 1320a-7(a) (mandatory exclusion) or 42 USC sect 1320a-7(b) (permissive exclusion)
b Release of Administrative Actions by California In consideration of the
obligations of the SCAN Parties in this Agreement and SCANs full payment of the Settlement
Amount California agrees to release the SCAN Parties from and to refrain from instituting
directing or maintaining against the SCAN Parties any administrative action seeking permissive
exclusion from Medi-Cal for the Covered Conduct California expressly reserves all rights to
comply with any mandatory statutory obligations to suspend or exclude the SCAN Parties from
Medi-Cal or any other program based upon the Covered Conduct
6 Exceptions to the Governments Releases Notwithstanding the releases given in
this Agreement or any other term of this Agreement the following claims of the Governments
are specifically reserved and are not released
a Any liability arising under Title 26 US Code (Internal Revenue Code) or
under Californias Taxation and Revenue Code
7
b Any criminal liability
c Except as explicitly stated in this Agreement any administrative liability
including mandatory exclusion from Federal or state health care programs
d Any liability to the United States (or its agencies) or to California (or its
agencies) for any conduct other than (1) the Covered Conduct and (2) the conduct alleged as to
the SCAN Parties in Relators Complaints in the Civil Action subject to the agreed construction
set forth in Paragraph 3 of this Agreement of the Seventh Claim for Relief in the Second and
Third Amended Complaints and subject to subparagraph (e) below
e Except as set forth in Paragraph C2 of this Agreement any liability
arising under the Ninth Claim for Relief in the Third Amended Complaint
f Any liability based upon obligations created by this Agreement
g Any liability for express or implied warranty claims or other claims for
defective or deficient products or services including quality of goods and services
h Any liability for failure to deliver goods or services due
1 Any liability for personal injury or property damage or for other
consequential damages arising from the Covered Conduct
J Any liability of individuals
k Any liability for SCANs receipt of payments from Medi-Cal for services
to beneficiaries who were receiving similar services from counties through the In-Home Support
Services Program (IHSS)
1 Any liability for SCANs certifications of required nursing facility levels of
care made on or after January 1 2009
8
7 Release of the SCAN Parties by Relator In consideration of the obligations of the
SCAN Parties in this Agreement~ conditioned upon the full payment of the Settlement Amount
Relator for himself and for his heirs successors attorneys agents and assigns agrees to
generally release acquit waive and forever discharge the SCAN Parties and all the current and
former officers and directors employees agents attorneys owners and shareholders of the
SCAN Parties from any and all rights claims expenses debts liabilities demands obligations
costs damages injuries actions and causes of action of every nature whether known or
unknown suspected or unsuspected in law or in equity from the beginning of the world to the
day of these presents including but not limited to those he advanced or could have advanced in
the Civil Action or otherwise under the False Claims Act 31 USC sectsect 3729-3733 for expenses
or attorneys fees and costs under 31 USC sect 3730(h) or under 31 USC sect 3730(h) for
employment decisions by the SCAN Parties under the California False Claims Act Cal
Government Codesectsect 12650-12656 andor other statutory or common law doctrines of payment
by mistake unjust enrichment breach of contract fraud or the like except however that
Relator does not release the aforesaid persons and entities from any liability they may have for
payment of Relators expenses attorneys fees and costs if any under 31 USC sect 3730(d)(l)
and California Government Code sect 12652(g)(8) Except for the foregoing exception the
foregoing sentence is intended to be interpreted as a general release Furthermore except for the
foregoing exception Relator covenants not to sue the SCAN Parties its current and former
officers and directors employees agents attorneys and shareholders of the SCAN Parties witli
respect to any and all rights claims expenses debts liabilities demands obligations costs
damages injuries actions and causes of action of every nature whether known or unknown
9
suspected or unsuspected in law or in equity including those for attorneys fees and costs arising
prior to the Effective Date ofthis Agreement and not covered by 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(8)
8 Release of the Governments by the SCAN Parties The SCAN Parties fully and
finally release the Governments and their respective agencies officers agents employees and
servants from any claims (including attorneys fees costs and expenses of every kind and
however denominated) that the SCAN Parties have asserted could have asserted or may assert in
the future against the Governments and their respective agencies officers agents employees
and servants related to or arising out of the Covered Conduct the Civil Action the
Governments investigation of the Covered Conduct and the Civil Action and any ensuing civil
prosecution
9 This Agreement is Fair Adequate and Reasonable Relator and his heirs
successors attorneys agents and assigns do not and shall not object to this Agreement and
instead agree and confirm that this Agreement and the settlement effectuated herein are fair
adequate and reasonable under all ofthe circumstances pursuant to 31 USC sect 3730(c)(2)(B)
and California Government Codesect 12652(e)(2)(B) The Governments and Relator and his heirs
successors attorneys agents and assigns agree that they each retain all of their rights on the
issue of the share percentage if any that Relator should receive of any proceeds of the settlement
of his claims and that no agreements concerning any Relator share have been reached to date
The Governments and Relator and his heirs successors attorneys agents and assigns agree that
neither this Agreement nor any part of it nor any intervention by the United States andor
California in the Civil Action in order to dismiss the Civil Action or for any other purpose nor
10
any dismissal of the Civil Action nor any other circumstance (1) shall waive or otherwise affect
the ability of the Governments to contend that Relator is barred from sharing in any or all of the
proceeds of this Agreement or to contend that some or all of the Covered Conduct alleged in the
Recitals paragraph C of this Agreement is not alleged in Relators Complaints in the Civil
Action or (2) shall waive or otherwise affect Relators ability to contend that he should share in
any or all of the proceeds of this Agreement or to contend that some or all of the Covered
Conduct alleged in the Recitals paragraph C of this Agreement is alleged in Relators
Complaints in the Civil Action
10 Double Jeopardy and Excessive Fines Clauses The SCAN Parties waive and
shall not assert any defenses they may have to any criminal prosecution or administrative action
relating to the Covered Conduct that may be based in whole or in part on a contention that under
the Double Jeopardy Clause in the Fifth Amendment ofthe United States Constitution the
Excessive Fines Clause in the Eighth Amendment of the United States Constitution or under
Article 1 sections 15 and 24 of the California Constitution this Agreement bars a remedy sought
in such criminal prosecution or administrative action
11 No Characterization of Settlement Amount for the Purpose of Internal Revenue
Laws Nothing in the preceding Paragraph or in any provision of this Agreement constitutes an
agreement by the United States concerning the characterization of the Settlement Amount for
purposes ofthe Internal Revenue laws Title 26 of the United States Code
12 Denial of Claims The Settlement Amount shall not be decreased as a result of
the denial of claims for payment now being withheld from payment by any Medicare carrier or
intermediary or any state payer related to the Covered Conduct and the SCAN Parties agree not
11
to resubmit to any Medicare carrier or intermediary or any state payer any previously denied
claims related to the Covered Conduct and agree not to appeal any such denials of claims
13 Unallowable Costs The SCAN Parties agree to the following
a Unallowable Costs Defined All costs (as defined in the Federal
Acquisition Regulation 48 CFR sect 31205-47 and in Titles XVIII and XIX ofthe Social
Security Act 42 USC sectsect 1395-1395kkk-1 and 1396-1396w-5 and the regulations and official
program directives promulgated thereunder) incurred by or on behalf of the SCAN Parties andor
by their respective present or former officers directors employees shareholders and agents in
connection with
(1) the matters covered by this Agreement
(2) the Governments audit(s) and civil and any criminal
investigation(s) of any of the matters covered by this Agreement
(3) the SCAN Parties investigation defense and corrective actions
undertaken in response to the Governments audit(s) and civil and any
criminal investigation(s) in connection with the matters covered by this
Agreement (including attorneys fees)
(4) the negotiation and performance of this Agreement and
(5) the payment SCAN makes to the Governments pursuant to this
Agreement and any payments that the SCAN Parties may make to Relator
including costs and attorneys fees
are unallowable costs for government contracting purposes and under the Medicare Program
Medicaid Program TRICARE Program and Federal Employees Health Benefits Program
12
(FEHBP) or any other federal or state program (hereinafter referred to as Unallowable Costs)
b Future Treatment of Unallowable Costs Unallowable Costs shall be
separately determined and accounted for in nonreimbursable cost centers by the SCAN Parties
and the SCAN Parties shall not charge such Unallowable Costs directly or indirectly to any
contracts with the United States California or any state Medicaid program or seek payment for
such Unallowable Costs through any cost report cost statement information statement or
payment request submitted by the SCAN Parties or any of their respective subsidiaries or
affiliates to the Medicare Medicaid TRICARE or FEHBP Programs or to any other federal or
state program
c Treatment of Unallowable Costs Previously Submitted for Payment The
SCAN Parties further agree that within 90 days of the Effective Date of this Agreement they shall
identify to applicable Medicare and TRICARE fiscal intermediaries carriers andor contractors
and Medicaid and FEHBP fiscal agents any Unallowable Costs included in payments previously
sought from the United States California or any state Medicaid program including but not
limited to payments sought in any cost reports cost statements information reports or payment
requests already submitted by the SCAN Parties or any of their respective subsidiaries or
affiliates and shall request and agree that such cost reports cost statements information
reports or payment requests even if already settled be adjusted to account for the effect of the
inclusion of the unallowable costs The SCAN Parties agree that the Governments at a
minimum shall be entitled to recoup from them any overpayment plus applicable interest and
penalties as a result of the inclusion of such Unallowable Costs on previously-submitted cost
reports information reports cost statements or requests for payment
13
Any payments due after the adjustments have been made shall be paid to the
Governments pursuant to the direction of the United States Department of Justice andor the
affected agencies The Governments reserve their rights to disagree with any calculations
submitted by the SCAN Parties or any of their respective subsidiaries or affiliates on the effect of
inclusion of Unallowable Costs (as defined in this Paragraph) on the SCAN Parties or any of
their respective subsidiaries or affiliates cost reports cost statements or information reports
d Nothing in this Agreement shall constitute a waiver of the rights of the
Governments to audit examine or re-examine the SCAN Parties books and records to determine
that no Unallowable Costs have been claimed in accordance with the provisions of this
Paragraph
14 Benefit of the Parties This Agreement is intended to be for the benefit ofthe
Parties only The Parties do not release any claims against any other person or entity except to
the extent provided for in the Paragraph immediately below (waiver for beneficiaries Paragraph)
15 Waiver for Health Care Beneficiaries The SCAN Parties agree that they waive
and shall not seek payment for any of the health care billings covered by this Agreement from
any health care beneficiaries or their parents sponsors legally responsible individuals or third
party payors based upon the claims defined as Covered Conduct
16 Financial Condition SCAN warrants that it has reviewed its financial situation
and that it currently is solvent within the meaning of 11 USC sectsect 547(b)(3) and
548(a)(l)(B)(ii)(I) and shall remain solvent following payment to the Governments ofthe
Settlement Amount Further the Parties warrant that in evaluating whether to execute this
Agreement they (a) have intended that the mutual promises covenants and obligations set forth
14
constitute a contemporaneous exchange for new value given to SCAN within the meaning of 11
USC sect 547(c)(1) and (b) conclude that these mutual promises covenants and obligations do
in fact constitute such a contemporaneous exchange Further the Parties warrant that the mutual
promises covenants and obligations set forth herein are intended to and do in fact represent a
reasonably equivalent exchange of value that is not intended to hinder delay or defraud any
entity to which SCAN was or became indebted to on or after the date of this transfer within the
meaning of 11 USC sect 548(a)(l)
17 Costs With the exception ofRelators expenses attorneys fees and costs if any
under 31 USC sect 3730(d)(1) and California Government Codesect 12652(g)(8) each Party shall
bear its and his own legal and other costs fees and expenses incurred in connection with this
matter including the preparation and performance of this Agreement
18 Governing Law This Agreement is governed by the laws of the United States
The exclusive jurisdiction and venue for any dispute relating to this Agreement is the United
States District Court for the Central District of California
19 Voluntary Agreement Each Party represents that it and he freely voluntarily
knowingly and deliberately enters into this Agreement without any degree of duress
compulsion or misconduct by any of the Parties
20 No Representations Outside this Agreement Each of the Parties acknowledges
that except as expressly set forth in this Agreement no representations of any kind or character
have been made by any other party or that partys ~gents representatives or attorneys to induce
execution or delivery of this Agreement
21 Agreement Drafted by All Parties This Agreement shall be deemed to have been
15
drafted by all Parties to this Agreement and therefore shall not be construed against any Party for
reasons of drafting
22 Complete Agreement This Agreement constitutes the entire agreement of the
Parties with respect to the subject matter of this Agreement and may not be modified amended
or terminated except by a written agreement signed by the Parties specifically referring to this
Agreement and its relevant portions
23 The SCAN Parties Successors etc This Agreement is binding on the SCAN
Parties respective successors transferees and assigns
24 Relators Successors etc This Agreement is binding on Relators successors
transferees heirs and assigns
25 Disclosure All Parties consent to the Governments disclosure of this Agreement
and information about this Agreement to the public
26 Headings The headings in this Agreement are for convenience only do not
constitute a part of this Agreement and shall not limit or affect any of its provisions
27 Capacity to Execute The undersigned counsel represent and warrant that they are
fully authorized to execute this Agreement on behalf of the persons and entities indicated below
The Relator represents that he has the full power authority and competence necessary to enter
into this Agreement
28 Counterparts and Facsimiles This Agreement may be executed in counterparts
each of which constitutes an original and all of which constitute one and the same Agreement
Facsimiles of signatures shall constitute acceptable binding signatures for purposes of this
Agreement
16
29 Effective Date This Agreement is effective on the date of signature of the last
signatory to the Agreement (Effective Date of this Agreement)
In Witness Whereof the Parties through their duly authorized representatives hereunder
set their hands
THE UNITED STATES OF AMERICA
DATED WQ_Qf)_
DATED ~Itk)2shy
DATED_____
Assistant United States Attorney Central District of California
JOHN E LEE Assistant United States Attorney Central District of California
BY __________________
GREGORY E DEMSKE Chief Counsel to the Inspector General Office of Counsel to the Inspector General Office of Inspector General United States Department of Health and Human Services
17
29 Effective Date This Agreement is effective on the date of signature of the last
signatory to the Agreement (Effective Date ofthis Agreement)
In Witness Whereof the Parties through their duly authorized representatives hereunder
set their hands
DATED_____
DATED_____
DATED~
THE UNITED STAT_ES OF AMERlCA
BY ___________________ SUSAN R HERSHMAN Assistant United States Attorney Central District of California
BY -------------------------shyJOHNELEE Assistant United States Attorney
Central District of~
BY __~~~==---~--------------------------GREGORY E DEMSKE Chief Counsel to the Inspector General Office of Counsel to the Inspector General Office of Inspector General United States Department of Health and Human Services
17
--------------
THE STATE OF CALIFORNIA
l 3o)l~ BY __L_~_J_y~----DATED I
B~ V FRANKEL Supervising Deputy Attorney General State of California
DATED---____ BY ___________________________
LORA FOX MARTIN Deputy Attorney General State of California
BY ___________________________DATED_____ TOBY BOUGLAS
Director Department ofHealth Care Services
SCANHEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP B DEFENDANTS
BY ____________________________DATED____ ______ of SCAN Health Plan
DATED____ BY of Senior Care Action Network
----~
BY _______________________ middot DATED-middotmiddot_____ ________ of SCAN Group
18
------
THE STATE OF CALIFORNIA
BY ____________________________DATED_____ BRIAN V FRANKEL Supervising Deputy Attorney General State of California
DATED 1fetz_ ~I B~~~
LO FOX MARTIN Deputy Attorney General State of California
BY _________________________DATED_____ TOBY DOUGLAS
Director Department of Health Care Services
SCANHEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP B DEFENDANTS
DATED____ BY ______________~---------------- of SCAN Health Plan
BYDATEDmiddot--- shy --------~-----of Senior Care Action Network
BY _________________________DATED---_____ _______ of SCAN Group
18
middot THE STATEOF CALIFORNIA
DATED_------- BY _____~-----~------------BRIAN V FRANKEL Supervising DeputY Attorney General State of California
DATED______ BY __~----~-----------------LORA FOX MARTIN Deputy Attorney General State of California
lt)iy middot~~ gt c
~~DOUGLAS 7) middot Director
Department ofHealth Care Services
SCAN HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP DEFENDANTS
BY ________________________~DATED____
--~--- of SCAN Health Plan
DATED____ BY __________~----------of Senior Care Action Network middot------
DATED_____ BY _______________________ _ _______ of scAN Groupmiddot
18
THE STATE OF CALIFORNIA
DATED_____ BY ____________________________
BRIANV FRANKEL Supervising Deputy Attorney General State of California
DATED_____ BY ____________________________
LORA FOX MARTIN Deputy Attorney General State of California
BY ___________________________DATED_____
TOBY DOUGLAS Director Department of Health Care Services
SCAN HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP DEFENDANTS
BY _______lC-----~-----r--~~----------~~ealthPian
BY
BY
18
DATED dz
R GER S GOLDMAN Latham amp Watkins counsel for SCAN Health Plan Senior Care Action Network ann Scan Group
JAM~S Mmiddot S)YQBEN -RELATOR
DATED____ BY ____~--~----~~--- JAMES M SWOSEN
Approved as to form and contellt
DATED_~~__ BY -------=~----------WILLIAM HANAGAMI
The Hanagami Law Firm A Professional Corporation Counsel fDr James M Swoben
19
DATED____ BY _______________ DAVID J SCHINDLER Latham amp Watk1ns Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
DATED_____ BY _______________________
ROGERS GOLDMAN Latham amp Watkins Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
JAMES M SWOBEN- RELATOR
DATED9-() to1---BYbull ~~ JAMES M SWOBEN
(
Approved as to form and content
L ~ ~middotmiddotmiddot- BY middott I amp -middot-- - ____ DATED 1 5t I C ( vbull 7 1bull lr-~A7AGAJ11 The Hanagami Law Firm A Professional Corporation Counsel for James M Swoben
DATED______ BY ABRAM J ZINBERG Counsel for James M Swoben
19
Exhibit 1
20
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 90012 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel [UNDER SEAL] ) NOTICE OF [SEALED] AND
) [PROPOSED]ORDERTHEREON Plaintiffs )
) [LODGED UNDER SEAL v ) pursuant to the False Claim Act
) 31 USC sect 3730(b)(2) and (3)] [UNDER SEAL] )
) [CAPTION ALSO MAY DESIGNATE (Caption continued on next page) ) OTHER DOCUMENTS FILED OR
) LODGED CONCURRENTLY]
21
Defendants )
22
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 900 12 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel ) JAMES M SWOBEN ) NOTICE OF DISMISSAL OF ALL
Plaintiffs ) CLAIMS AGAINST DEFENDANTS v ) SCAN HEALTH PLAN SENIOR
SCAN HEALTH PLAN a California ) CARE ACTION NETWORK AND corporation fka SENIOR CARE ) SCAN GROUP PURSUANT TO ACTION NETWORK SENIOR CARE ) SETTLEMENT AGREEMENT ACTION NETWORK a business entity) CONSENTS OF THE UNITED (Caption continued on next page) ) STATES AND STATE OF form unknown SCAN GROUP a ) CALIFORNIA ATTORNEYS
23
California corporation [NAMES OF ) GENERAL THERETO AND REMAINING DEFENDANTS ) [PROPOSED]ORDERTHEREON SEALED] )
Defendants ) [LODGED UNDER SEAL ) pursuant to the False Claim Act
31 USC sect 3730(b)(2) and (3)]
[CAPTION ALSO MAY DESIGNATE OTHER DOCUMENTS FILED OR LODGED CONCURRENTLY]
Pursuant to Rule 4l(a) of the Federal Rules of Civil Procedure and subject to
and in order to effectuate the settlement agreement among
the Relator James M Swoben (Relator) Defendants SCAN Health Plan
Senior Care Action Network and SCAN Group (collectively the SCAN
Defendants) and the United States of America and the State of California
(collectively the Governments)
the Relator hereby upon the Order of the Court herein
Dismisses all claims for relief and causes of action filed in the above-
captioned action against Defendants SCAN HEALTH PLAN SENIOR CARE
ACTION NETWORK and SCAN GROUP said dismissal being (a) with
prejudice as to the Relator (b) without prejudice to the United States of America as
to the Ninth Claim for Relief of the Third Amended Complaint and (c) with
prejudice to the Governments as to all other claims for relief and causes of action in
all Complaints filed in the above-captioned action against Defendants SCAN
HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP to
the extent that those claims for relief and causes of action are or purport to be filed
pursuant to the False Claims Act 31 USC sect 3729 et seq and the California False
Claims Act California Government Codesect 12650 et seq
Except that the Relator does not dismiss the Relators claim for a relators
share to be paid by the Governments pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(2) As to this claim the Relator
respectfully requests that the Court retain jurisdiction to determine if necessary the
relators share that the Relator should obtain pursuant to 31 USC sect 3730( d)(l) and
California Government Codesect 12652(g)(2) and
Except that the Relator does not dismiss the Relators claim for payment by
any and all of the SCAN Defendants to the Relator of expenses fees and costs
pursuant to 31 USC sect 3730(d)(l) and California Government Code
sect 12652(g)(8) As to this claim the Relator respectfully requests that the Court
retain jurisdiction to determine if necessary the appropriate expenses fees and
25
costs that the Relator should obtain pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(8)
Respectfully submitted
DATED _____ 2012 WILLIAM HANAGAMI ESQ The Hanagami Law Firm
ABRAM J ZINBERG ESQ Attorney at Law
WILLIAM HANAGAMI ESQ Attorneys for Relator JAMES M SWOBEN
26
CONSENT OF THE ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA
Pursuant to 31 USC sect 3730(b )(1) the Attorney General of the United
States of America by and through the undersigned consents to the foregoing
dismissal The reason for the consent of the Attorney General is that the dismissal
is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED _____ 2012 ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section
JOHN E LEE Assistant United States Attorney
Attorneys for the UNITED STATES OF AMERICA
CONSENT OF THE ATTORNEY GENERAL
OF THE STATE OF CALIFORNIA
Pursuant to California Government Codesect 12652(c)(1) the Attorney
General of the State of California by and through the undersigned consents to the
foregoing dismissal The reason for the consent of the Attorney General is that the
dismissal is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED 2012 ---- shy KAMALA D HARRIS Attorney General of California BRIAN V FRANKEL Supervising Deputy Attorney General
LORA FOX MARTIN Deputy Attorney General
Attorneys for the STATE OF CALIFORNIA
IT IS SO ORDERED
This ____ day of _____ 2012
UNITED STATES DISTRICT JUDGE
28
Parties agree that if the two said documents are filed concurrently the said Notice of Dismissal
shall be deemed to have been filed after the said notice of intervention and declination For
purposes of any action claim proceeding or dispute other than the Civil Action brought or
asserted by the United States or on behalf of the United States by any qui tam relator other than
Relator SCAN Senior Care Action Network and Scan Group (1) construe the Seventh Claim
for Relief of the Second Amended Complaint in the Civil Action to include solely paragraphs 84
through 87 thereof inclusive and (2) construe the Seventh Claim for Relief of the Third
Amended Complaint in the Civil Action to include solely paragraphs 88 through 91 thereof
inclusive
4 The Governments Releases of the SCAN Parties
a Release of the SCAN Parties by the United States Subject to the
exceptions in Paragraph 6 (concerning excluded claims) below and conditioned upon SCANs
full payment of the Settlement Amount the United States releases the SCAN Parties from any
civil or administrative monetary claim the United States has for the Covered Conduct under the
False Claims Act 31 USC sect 3729-3733 both pre-amendment and as amended by the Fraud
Enforcement and Recovery Act of2009 Pub L 111-21 123 Stat 1617 (2009) the Civil
Monetary Penalties Law 42 USC sect 1320a-7a the Program Fraud Civil Remedies Act 31
USC sectsect 3801-3812 or the common law theories of breach of contract recoupment unlawful
payment legally unauthorized payment payment by mistake unjust enrichment and fraud
b Release of the SCAN Parties by California Subject to the exceptions in
Paragraph 6 (concerning excluded claims) below and conditioned upon SCANs full payment of
the Settlement Amount California releases the SCAN Parties from any civil or administrative
6
monetary cl~im California has for the Covered Conduct under the California False Claims Act
Cal Government Codesectsect 12650-12656 or the common law theories of breach of contract
recoupment unlawful payment legally unauthorized payment payment by mistake unjust
enrichment and fraud
5 Reservation of Rights to Administrative Actions
a OIG-HHS Reservation of Rights OIG-HHS expressly reserves all rights
to institute to direct or to maintain any administrative action seeking exclusion against the
SCAN Parties andor their respective officers directors and employees from Medicare
Medicaid or other Federal health care programs as defined in 42 USC sect 1320a-7b(f) under 42
USC sect 1320a-7(a) (mandatory exclusion) or 42 USC sect 1320a-7(b) (permissive exclusion)
b Release of Administrative Actions by California In consideration of the
obligations of the SCAN Parties in this Agreement and SCANs full payment of the Settlement
Amount California agrees to release the SCAN Parties from and to refrain from instituting
directing or maintaining against the SCAN Parties any administrative action seeking permissive
exclusion from Medi-Cal for the Covered Conduct California expressly reserves all rights to
comply with any mandatory statutory obligations to suspend or exclude the SCAN Parties from
Medi-Cal or any other program based upon the Covered Conduct
6 Exceptions to the Governments Releases Notwithstanding the releases given in
this Agreement or any other term of this Agreement the following claims of the Governments
are specifically reserved and are not released
a Any liability arising under Title 26 US Code (Internal Revenue Code) or
under Californias Taxation and Revenue Code
7
b Any criminal liability
c Except as explicitly stated in this Agreement any administrative liability
including mandatory exclusion from Federal or state health care programs
d Any liability to the United States (or its agencies) or to California (or its
agencies) for any conduct other than (1) the Covered Conduct and (2) the conduct alleged as to
the SCAN Parties in Relators Complaints in the Civil Action subject to the agreed construction
set forth in Paragraph 3 of this Agreement of the Seventh Claim for Relief in the Second and
Third Amended Complaints and subject to subparagraph (e) below
e Except as set forth in Paragraph C2 of this Agreement any liability
arising under the Ninth Claim for Relief in the Third Amended Complaint
f Any liability based upon obligations created by this Agreement
g Any liability for express or implied warranty claims or other claims for
defective or deficient products or services including quality of goods and services
h Any liability for failure to deliver goods or services due
1 Any liability for personal injury or property damage or for other
consequential damages arising from the Covered Conduct
J Any liability of individuals
k Any liability for SCANs receipt of payments from Medi-Cal for services
to beneficiaries who were receiving similar services from counties through the In-Home Support
Services Program (IHSS)
1 Any liability for SCANs certifications of required nursing facility levels of
care made on or after January 1 2009
8
7 Release of the SCAN Parties by Relator In consideration of the obligations of the
SCAN Parties in this Agreement~ conditioned upon the full payment of the Settlement Amount
Relator for himself and for his heirs successors attorneys agents and assigns agrees to
generally release acquit waive and forever discharge the SCAN Parties and all the current and
former officers and directors employees agents attorneys owners and shareholders of the
SCAN Parties from any and all rights claims expenses debts liabilities demands obligations
costs damages injuries actions and causes of action of every nature whether known or
unknown suspected or unsuspected in law or in equity from the beginning of the world to the
day of these presents including but not limited to those he advanced or could have advanced in
the Civil Action or otherwise under the False Claims Act 31 USC sectsect 3729-3733 for expenses
or attorneys fees and costs under 31 USC sect 3730(h) or under 31 USC sect 3730(h) for
employment decisions by the SCAN Parties under the California False Claims Act Cal
Government Codesectsect 12650-12656 andor other statutory or common law doctrines of payment
by mistake unjust enrichment breach of contract fraud or the like except however that
Relator does not release the aforesaid persons and entities from any liability they may have for
payment of Relators expenses attorneys fees and costs if any under 31 USC sect 3730(d)(l)
and California Government Code sect 12652(g)(8) Except for the foregoing exception the
foregoing sentence is intended to be interpreted as a general release Furthermore except for the
foregoing exception Relator covenants not to sue the SCAN Parties its current and former
officers and directors employees agents attorneys and shareholders of the SCAN Parties witli
respect to any and all rights claims expenses debts liabilities demands obligations costs
damages injuries actions and causes of action of every nature whether known or unknown
9
suspected or unsuspected in law or in equity including those for attorneys fees and costs arising
prior to the Effective Date ofthis Agreement and not covered by 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(8)
8 Release of the Governments by the SCAN Parties The SCAN Parties fully and
finally release the Governments and their respective agencies officers agents employees and
servants from any claims (including attorneys fees costs and expenses of every kind and
however denominated) that the SCAN Parties have asserted could have asserted or may assert in
the future against the Governments and their respective agencies officers agents employees
and servants related to or arising out of the Covered Conduct the Civil Action the
Governments investigation of the Covered Conduct and the Civil Action and any ensuing civil
prosecution
9 This Agreement is Fair Adequate and Reasonable Relator and his heirs
successors attorneys agents and assigns do not and shall not object to this Agreement and
instead agree and confirm that this Agreement and the settlement effectuated herein are fair
adequate and reasonable under all ofthe circumstances pursuant to 31 USC sect 3730(c)(2)(B)
and California Government Codesect 12652(e)(2)(B) The Governments and Relator and his heirs
successors attorneys agents and assigns agree that they each retain all of their rights on the
issue of the share percentage if any that Relator should receive of any proceeds of the settlement
of his claims and that no agreements concerning any Relator share have been reached to date
The Governments and Relator and his heirs successors attorneys agents and assigns agree that
neither this Agreement nor any part of it nor any intervention by the United States andor
California in the Civil Action in order to dismiss the Civil Action or for any other purpose nor
10
any dismissal of the Civil Action nor any other circumstance (1) shall waive or otherwise affect
the ability of the Governments to contend that Relator is barred from sharing in any or all of the
proceeds of this Agreement or to contend that some or all of the Covered Conduct alleged in the
Recitals paragraph C of this Agreement is not alleged in Relators Complaints in the Civil
Action or (2) shall waive or otherwise affect Relators ability to contend that he should share in
any or all of the proceeds of this Agreement or to contend that some or all of the Covered
Conduct alleged in the Recitals paragraph C of this Agreement is alleged in Relators
Complaints in the Civil Action
10 Double Jeopardy and Excessive Fines Clauses The SCAN Parties waive and
shall not assert any defenses they may have to any criminal prosecution or administrative action
relating to the Covered Conduct that may be based in whole or in part on a contention that under
the Double Jeopardy Clause in the Fifth Amendment ofthe United States Constitution the
Excessive Fines Clause in the Eighth Amendment of the United States Constitution or under
Article 1 sections 15 and 24 of the California Constitution this Agreement bars a remedy sought
in such criminal prosecution or administrative action
11 No Characterization of Settlement Amount for the Purpose of Internal Revenue
Laws Nothing in the preceding Paragraph or in any provision of this Agreement constitutes an
agreement by the United States concerning the characterization of the Settlement Amount for
purposes ofthe Internal Revenue laws Title 26 of the United States Code
12 Denial of Claims The Settlement Amount shall not be decreased as a result of
the denial of claims for payment now being withheld from payment by any Medicare carrier or
intermediary or any state payer related to the Covered Conduct and the SCAN Parties agree not
11
to resubmit to any Medicare carrier or intermediary or any state payer any previously denied
claims related to the Covered Conduct and agree not to appeal any such denials of claims
13 Unallowable Costs The SCAN Parties agree to the following
a Unallowable Costs Defined All costs (as defined in the Federal
Acquisition Regulation 48 CFR sect 31205-47 and in Titles XVIII and XIX ofthe Social
Security Act 42 USC sectsect 1395-1395kkk-1 and 1396-1396w-5 and the regulations and official
program directives promulgated thereunder) incurred by or on behalf of the SCAN Parties andor
by their respective present or former officers directors employees shareholders and agents in
connection with
(1) the matters covered by this Agreement
(2) the Governments audit(s) and civil and any criminal
investigation(s) of any of the matters covered by this Agreement
(3) the SCAN Parties investigation defense and corrective actions
undertaken in response to the Governments audit(s) and civil and any
criminal investigation(s) in connection with the matters covered by this
Agreement (including attorneys fees)
(4) the negotiation and performance of this Agreement and
(5) the payment SCAN makes to the Governments pursuant to this
Agreement and any payments that the SCAN Parties may make to Relator
including costs and attorneys fees
are unallowable costs for government contracting purposes and under the Medicare Program
Medicaid Program TRICARE Program and Federal Employees Health Benefits Program
12
(FEHBP) or any other federal or state program (hereinafter referred to as Unallowable Costs)
b Future Treatment of Unallowable Costs Unallowable Costs shall be
separately determined and accounted for in nonreimbursable cost centers by the SCAN Parties
and the SCAN Parties shall not charge such Unallowable Costs directly or indirectly to any
contracts with the United States California or any state Medicaid program or seek payment for
such Unallowable Costs through any cost report cost statement information statement or
payment request submitted by the SCAN Parties or any of their respective subsidiaries or
affiliates to the Medicare Medicaid TRICARE or FEHBP Programs or to any other federal or
state program
c Treatment of Unallowable Costs Previously Submitted for Payment The
SCAN Parties further agree that within 90 days of the Effective Date of this Agreement they shall
identify to applicable Medicare and TRICARE fiscal intermediaries carriers andor contractors
and Medicaid and FEHBP fiscal agents any Unallowable Costs included in payments previously
sought from the United States California or any state Medicaid program including but not
limited to payments sought in any cost reports cost statements information reports or payment
requests already submitted by the SCAN Parties or any of their respective subsidiaries or
affiliates and shall request and agree that such cost reports cost statements information
reports or payment requests even if already settled be adjusted to account for the effect of the
inclusion of the unallowable costs The SCAN Parties agree that the Governments at a
minimum shall be entitled to recoup from them any overpayment plus applicable interest and
penalties as a result of the inclusion of such Unallowable Costs on previously-submitted cost
reports information reports cost statements or requests for payment
13
Any payments due after the adjustments have been made shall be paid to the
Governments pursuant to the direction of the United States Department of Justice andor the
affected agencies The Governments reserve their rights to disagree with any calculations
submitted by the SCAN Parties or any of their respective subsidiaries or affiliates on the effect of
inclusion of Unallowable Costs (as defined in this Paragraph) on the SCAN Parties or any of
their respective subsidiaries or affiliates cost reports cost statements or information reports
d Nothing in this Agreement shall constitute a waiver of the rights of the
Governments to audit examine or re-examine the SCAN Parties books and records to determine
that no Unallowable Costs have been claimed in accordance with the provisions of this
Paragraph
14 Benefit of the Parties This Agreement is intended to be for the benefit ofthe
Parties only The Parties do not release any claims against any other person or entity except to
the extent provided for in the Paragraph immediately below (waiver for beneficiaries Paragraph)
15 Waiver for Health Care Beneficiaries The SCAN Parties agree that they waive
and shall not seek payment for any of the health care billings covered by this Agreement from
any health care beneficiaries or their parents sponsors legally responsible individuals or third
party payors based upon the claims defined as Covered Conduct
16 Financial Condition SCAN warrants that it has reviewed its financial situation
and that it currently is solvent within the meaning of 11 USC sectsect 547(b)(3) and
548(a)(l)(B)(ii)(I) and shall remain solvent following payment to the Governments ofthe
Settlement Amount Further the Parties warrant that in evaluating whether to execute this
Agreement they (a) have intended that the mutual promises covenants and obligations set forth
14
constitute a contemporaneous exchange for new value given to SCAN within the meaning of 11
USC sect 547(c)(1) and (b) conclude that these mutual promises covenants and obligations do
in fact constitute such a contemporaneous exchange Further the Parties warrant that the mutual
promises covenants and obligations set forth herein are intended to and do in fact represent a
reasonably equivalent exchange of value that is not intended to hinder delay or defraud any
entity to which SCAN was or became indebted to on or after the date of this transfer within the
meaning of 11 USC sect 548(a)(l)
17 Costs With the exception ofRelators expenses attorneys fees and costs if any
under 31 USC sect 3730(d)(1) and California Government Codesect 12652(g)(8) each Party shall
bear its and his own legal and other costs fees and expenses incurred in connection with this
matter including the preparation and performance of this Agreement
18 Governing Law This Agreement is governed by the laws of the United States
The exclusive jurisdiction and venue for any dispute relating to this Agreement is the United
States District Court for the Central District of California
19 Voluntary Agreement Each Party represents that it and he freely voluntarily
knowingly and deliberately enters into this Agreement without any degree of duress
compulsion or misconduct by any of the Parties
20 No Representations Outside this Agreement Each of the Parties acknowledges
that except as expressly set forth in this Agreement no representations of any kind or character
have been made by any other party or that partys ~gents representatives or attorneys to induce
execution or delivery of this Agreement
21 Agreement Drafted by All Parties This Agreement shall be deemed to have been
15
drafted by all Parties to this Agreement and therefore shall not be construed against any Party for
reasons of drafting
22 Complete Agreement This Agreement constitutes the entire agreement of the
Parties with respect to the subject matter of this Agreement and may not be modified amended
or terminated except by a written agreement signed by the Parties specifically referring to this
Agreement and its relevant portions
23 The SCAN Parties Successors etc This Agreement is binding on the SCAN
Parties respective successors transferees and assigns
24 Relators Successors etc This Agreement is binding on Relators successors
transferees heirs and assigns
25 Disclosure All Parties consent to the Governments disclosure of this Agreement
and information about this Agreement to the public
26 Headings The headings in this Agreement are for convenience only do not
constitute a part of this Agreement and shall not limit or affect any of its provisions
27 Capacity to Execute The undersigned counsel represent and warrant that they are
fully authorized to execute this Agreement on behalf of the persons and entities indicated below
The Relator represents that he has the full power authority and competence necessary to enter
into this Agreement
28 Counterparts and Facsimiles This Agreement may be executed in counterparts
each of which constitutes an original and all of which constitute one and the same Agreement
Facsimiles of signatures shall constitute acceptable binding signatures for purposes of this
Agreement
16
29 Effective Date This Agreement is effective on the date of signature of the last
signatory to the Agreement (Effective Date of this Agreement)
In Witness Whereof the Parties through their duly authorized representatives hereunder
set their hands
THE UNITED STATES OF AMERICA
DATED WQ_Qf)_
DATED ~Itk)2shy
DATED_____
Assistant United States Attorney Central District of California
JOHN E LEE Assistant United States Attorney Central District of California
BY __________________
GREGORY E DEMSKE Chief Counsel to the Inspector General Office of Counsel to the Inspector General Office of Inspector General United States Department of Health and Human Services
17
29 Effective Date This Agreement is effective on the date of signature of the last
signatory to the Agreement (Effective Date ofthis Agreement)
In Witness Whereof the Parties through their duly authorized representatives hereunder
set their hands
DATED_____
DATED_____
DATED~
THE UNITED STAT_ES OF AMERlCA
BY ___________________ SUSAN R HERSHMAN Assistant United States Attorney Central District of California
BY -------------------------shyJOHNELEE Assistant United States Attorney
Central District of~
BY __~~~==---~--------------------------GREGORY E DEMSKE Chief Counsel to the Inspector General Office of Counsel to the Inspector General Office of Inspector General United States Department of Health and Human Services
17
--------------
THE STATE OF CALIFORNIA
l 3o)l~ BY __L_~_J_y~----DATED I
B~ V FRANKEL Supervising Deputy Attorney General State of California
DATED---____ BY ___________________________
LORA FOX MARTIN Deputy Attorney General State of California
BY ___________________________DATED_____ TOBY BOUGLAS
Director Department ofHealth Care Services
SCANHEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP B DEFENDANTS
BY ____________________________DATED____ ______ of SCAN Health Plan
DATED____ BY of Senior Care Action Network
----~
BY _______________________ middot DATED-middotmiddot_____ ________ of SCAN Group
18
------
THE STATE OF CALIFORNIA
BY ____________________________DATED_____ BRIAN V FRANKEL Supervising Deputy Attorney General State of California
DATED 1fetz_ ~I B~~~
LO FOX MARTIN Deputy Attorney General State of California
BY _________________________DATED_____ TOBY DOUGLAS
Director Department of Health Care Services
SCANHEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP B DEFENDANTS
DATED____ BY ______________~---------------- of SCAN Health Plan
BYDATEDmiddot--- shy --------~-----of Senior Care Action Network
BY _________________________DATED---_____ _______ of SCAN Group
18
middot THE STATEOF CALIFORNIA
DATED_------- BY _____~-----~------------BRIAN V FRANKEL Supervising DeputY Attorney General State of California
DATED______ BY __~----~-----------------LORA FOX MARTIN Deputy Attorney General State of California
lt)iy middot~~ gt c
~~DOUGLAS 7) middot Director
Department ofHealth Care Services
SCAN HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP DEFENDANTS
BY ________________________~DATED____
--~--- of SCAN Health Plan
DATED____ BY __________~----------of Senior Care Action Network middot------
DATED_____ BY _______________________ _ _______ of scAN Groupmiddot
18
THE STATE OF CALIFORNIA
DATED_____ BY ____________________________
BRIANV FRANKEL Supervising Deputy Attorney General State of California
DATED_____ BY ____________________________
LORA FOX MARTIN Deputy Attorney General State of California
BY ___________________________DATED_____
TOBY DOUGLAS Director Department of Health Care Services
SCAN HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP DEFENDANTS
BY _______lC-----~-----r--~~----------~~ealthPian
BY
BY
18
DATED dz
R GER S GOLDMAN Latham amp Watkins counsel for SCAN Health Plan Senior Care Action Network ann Scan Group
JAM~S Mmiddot S)YQBEN -RELATOR
DATED____ BY ____~--~----~~--- JAMES M SWOSEN
Approved as to form and contellt
DATED_~~__ BY -------=~----------WILLIAM HANAGAMI
The Hanagami Law Firm A Professional Corporation Counsel fDr James M Swoben
19
DATED____ BY _______________ DAVID J SCHINDLER Latham amp Watk1ns Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
DATED_____ BY _______________________
ROGERS GOLDMAN Latham amp Watkins Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
JAMES M SWOBEN- RELATOR
DATED9-() to1---BYbull ~~ JAMES M SWOBEN
(
Approved as to form and content
L ~ ~middotmiddotmiddot- BY middott I amp -middot-- - ____ DATED 1 5t I C ( vbull 7 1bull lr-~A7AGAJ11 The Hanagami Law Firm A Professional Corporation Counsel for James M Swoben
DATED______ BY ABRAM J ZINBERG Counsel for James M Swoben
19
Exhibit 1
20
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 90012 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel [UNDER SEAL] ) NOTICE OF [SEALED] AND
) [PROPOSED]ORDERTHEREON Plaintiffs )
) [LODGED UNDER SEAL v ) pursuant to the False Claim Act
) 31 USC sect 3730(b)(2) and (3)] [UNDER SEAL] )
) [CAPTION ALSO MAY DESIGNATE (Caption continued on next page) ) OTHER DOCUMENTS FILED OR
) LODGED CONCURRENTLY]
21
Defendants )
22
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 900 12 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel ) JAMES M SWOBEN ) NOTICE OF DISMISSAL OF ALL
Plaintiffs ) CLAIMS AGAINST DEFENDANTS v ) SCAN HEALTH PLAN SENIOR
SCAN HEALTH PLAN a California ) CARE ACTION NETWORK AND corporation fka SENIOR CARE ) SCAN GROUP PURSUANT TO ACTION NETWORK SENIOR CARE ) SETTLEMENT AGREEMENT ACTION NETWORK a business entity) CONSENTS OF THE UNITED (Caption continued on next page) ) STATES AND STATE OF form unknown SCAN GROUP a ) CALIFORNIA ATTORNEYS
23
California corporation [NAMES OF ) GENERAL THERETO AND REMAINING DEFENDANTS ) [PROPOSED]ORDERTHEREON SEALED] )
Defendants ) [LODGED UNDER SEAL ) pursuant to the False Claim Act
31 USC sect 3730(b)(2) and (3)]
[CAPTION ALSO MAY DESIGNATE OTHER DOCUMENTS FILED OR LODGED CONCURRENTLY]
Pursuant to Rule 4l(a) of the Federal Rules of Civil Procedure and subject to
and in order to effectuate the settlement agreement among
the Relator James M Swoben (Relator) Defendants SCAN Health Plan
Senior Care Action Network and SCAN Group (collectively the SCAN
Defendants) and the United States of America and the State of California
(collectively the Governments)
the Relator hereby upon the Order of the Court herein
Dismisses all claims for relief and causes of action filed in the above-
captioned action against Defendants SCAN HEALTH PLAN SENIOR CARE
ACTION NETWORK and SCAN GROUP said dismissal being (a) with
prejudice as to the Relator (b) without prejudice to the United States of America as
to the Ninth Claim for Relief of the Third Amended Complaint and (c) with
prejudice to the Governments as to all other claims for relief and causes of action in
all Complaints filed in the above-captioned action against Defendants SCAN
HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP to
the extent that those claims for relief and causes of action are or purport to be filed
pursuant to the False Claims Act 31 USC sect 3729 et seq and the California False
Claims Act California Government Codesect 12650 et seq
Except that the Relator does not dismiss the Relators claim for a relators
share to be paid by the Governments pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(2) As to this claim the Relator
respectfully requests that the Court retain jurisdiction to determine if necessary the
relators share that the Relator should obtain pursuant to 31 USC sect 3730( d)(l) and
California Government Codesect 12652(g)(2) and
Except that the Relator does not dismiss the Relators claim for payment by
any and all of the SCAN Defendants to the Relator of expenses fees and costs
pursuant to 31 USC sect 3730(d)(l) and California Government Code
sect 12652(g)(8) As to this claim the Relator respectfully requests that the Court
retain jurisdiction to determine if necessary the appropriate expenses fees and
25
costs that the Relator should obtain pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(8)
Respectfully submitted
DATED _____ 2012 WILLIAM HANAGAMI ESQ The Hanagami Law Firm
ABRAM J ZINBERG ESQ Attorney at Law
WILLIAM HANAGAMI ESQ Attorneys for Relator JAMES M SWOBEN
26
CONSENT OF THE ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA
Pursuant to 31 USC sect 3730(b )(1) the Attorney General of the United
States of America by and through the undersigned consents to the foregoing
dismissal The reason for the consent of the Attorney General is that the dismissal
is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED _____ 2012 ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section
JOHN E LEE Assistant United States Attorney
Attorneys for the UNITED STATES OF AMERICA
CONSENT OF THE ATTORNEY GENERAL
OF THE STATE OF CALIFORNIA
Pursuant to California Government Codesect 12652(c)(1) the Attorney
General of the State of California by and through the undersigned consents to the
foregoing dismissal The reason for the consent of the Attorney General is that the
dismissal is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED 2012 ---- shy KAMALA D HARRIS Attorney General of California BRIAN V FRANKEL Supervising Deputy Attorney General
LORA FOX MARTIN Deputy Attorney General
Attorneys for the STATE OF CALIFORNIA
IT IS SO ORDERED
This ____ day of _____ 2012
UNITED STATES DISTRICT JUDGE
28
monetary cl~im California has for the Covered Conduct under the California False Claims Act
Cal Government Codesectsect 12650-12656 or the common law theories of breach of contract
recoupment unlawful payment legally unauthorized payment payment by mistake unjust
enrichment and fraud
5 Reservation of Rights to Administrative Actions
a OIG-HHS Reservation of Rights OIG-HHS expressly reserves all rights
to institute to direct or to maintain any administrative action seeking exclusion against the
SCAN Parties andor their respective officers directors and employees from Medicare
Medicaid or other Federal health care programs as defined in 42 USC sect 1320a-7b(f) under 42
USC sect 1320a-7(a) (mandatory exclusion) or 42 USC sect 1320a-7(b) (permissive exclusion)
b Release of Administrative Actions by California In consideration of the
obligations of the SCAN Parties in this Agreement and SCANs full payment of the Settlement
Amount California agrees to release the SCAN Parties from and to refrain from instituting
directing or maintaining against the SCAN Parties any administrative action seeking permissive
exclusion from Medi-Cal for the Covered Conduct California expressly reserves all rights to
comply with any mandatory statutory obligations to suspend or exclude the SCAN Parties from
Medi-Cal or any other program based upon the Covered Conduct
6 Exceptions to the Governments Releases Notwithstanding the releases given in
this Agreement or any other term of this Agreement the following claims of the Governments
are specifically reserved and are not released
a Any liability arising under Title 26 US Code (Internal Revenue Code) or
under Californias Taxation and Revenue Code
7
b Any criminal liability
c Except as explicitly stated in this Agreement any administrative liability
including mandatory exclusion from Federal or state health care programs
d Any liability to the United States (or its agencies) or to California (or its
agencies) for any conduct other than (1) the Covered Conduct and (2) the conduct alleged as to
the SCAN Parties in Relators Complaints in the Civil Action subject to the agreed construction
set forth in Paragraph 3 of this Agreement of the Seventh Claim for Relief in the Second and
Third Amended Complaints and subject to subparagraph (e) below
e Except as set forth in Paragraph C2 of this Agreement any liability
arising under the Ninth Claim for Relief in the Third Amended Complaint
f Any liability based upon obligations created by this Agreement
g Any liability for express or implied warranty claims or other claims for
defective or deficient products or services including quality of goods and services
h Any liability for failure to deliver goods or services due
1 Any liability for personal injury or property damage or for other
consequential damages arising from the Covered Conduct
J Any liability of individuals
k Any liability for SCANs receipt of payments from Medi-Cal for services
to beneficiaries who were receiving similar services from counties through the In-Home Support
Services Program (IHSS)
1 Any liability for SCANs certifications of required nursing facility levels of
care made on or after January 1 2009
8
7 Release of the SCAN Parties by Relator In consideration of the obligations of the
SCAN Parties in this Agreement~ conditioned upon the full payment of the Settlement Amount
Relator for himself and for his heirs successors attorneys agents and assigns agrees to
generally release acquit waive and forever discharge the SCAN Parties and all the current and
former officers and directors employees agents attorneys owners and shareholders of the
SCAN Parties from any and all rights claims expenses debts liabilities demands obligations
costs damages injuries actions and causes of action of every nature whether known or
unknown suspected or unsuspected in law or in equity from the beginning of the world to the
day of these presents including but not limited to those he advanced or could have advanced in
the Civil Action or otherwise under the False Claims Act 31 USC sectsect 3729-3733 for expenses
or attorneys fees and costs under 31 USC sect 3730(h) or under 31 USC sect 3730(h) for
employment decisions by the SCAN Parties under the California False Claims Act Cal
Government Codesectsect 12650-12656 andor other statutory or common law doctrines of payment
by mistake unjust enrichment breach of contract fraud or the like except however that
Relator does not release the aforesaid persons and entities from any liability they may have for
payment of Relators expenses attorneys fees and costs if any under 31 USC sect 3730(d)(l)
and California Government Code sect 12652(g)(8) Except for the foregoing exception the
foregoing sentence is intended to be interpreted as a general release Furthermore except for the
foregoing exception Relator covenants not to sue the SCAN Parties its current and former
officers and directors employees agents attorneys and shareholders of the SCAN Parties witli
respect to any and all rights claims expenses debts liabilities demands obligations costs
damages injuries actions and causes of action of every nature whether known or unknown
9
suspected or unsuspected in law or in equity including those for attorneys fees and costs arising
prior to the Effective Date ofthis Agreement and not covered by 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(8)
8 Release of the Governments by the SCAN Parties The SCAN Parties fully and
finally release the Governments and their respective agencies officers agents employees and
servants from any claims (including attorneys fees costs and expenses of every kind and
however denominated) that the SCAN Parties have asserted could have asserted or may assert in
the future against the Governments and their respective agencies officers agents employees
and servants related to or arising out of the Covered Conduct the Civil Action the
Governments investigation of the Covered Conduct and the Civil Action and any ensuing civil
prosecution
9 This Agreement is Fair Adequate and Reasonable Relator and his heirs
successors attorneys agents and assigns do not and shall not object to this Agreement and
instead agree and confirm that this Agreement and the settlement effectuated herein are fair
adequate and reasonable under all ofthe circumstances pursuant to 31 USC sect 3730(c)(2)(B)
and California Government Codesect 12652(e)(2)(B) The Governments and Relator and his heirs
successors attorneys agents and assigns agree that they each retain all of their rights on the
issue of the share percentage if any that Relator should receive of any proceeds of the settlement
of his claims and that no agreements concerning any Relator share have been reached to date
The Governments and Relator and his heirs successors attorneys agents and assigns agree that
neither this Agreement nor any part of it nor any intervention by the United States andor
California in the Civil Action in order to dismiss the Civil Action or for any other purpose nor
10
any dismissal of the Civil Action nor any other circumstance (1) shall waive or otherwise affect
the ability of the Governments to contend that Relator is barred from sharing in any or all of the
proceeds of this Agreement or to contend that some or all of the Covered Conduct alleged in the
Recitals paragraph C of this Agreement is not alleged in Relators Complaints in the Civil
Action or (2) shall waive or otherwise affect Relators ability to contend that he should share in
any or all of the proceeds of this Agreement or to contend that some or all of the Covered
Conduct alleged in the Recitals paragraph C of this Agreement is alleged in Relators
Complaints in the Civil Action
10 Double Jeopardy and Excessive Fines Clauses The SCAN Parties waive and
shall not assert any defenses they may have to any criminal prosecution or administrative action
relating to the Covered Conduct that may be based in whole or in part on a contention that under
the Double Jeopardy Clause in the Fifth Amendment ofthe United States Constitution the
Excessive Fines Clause in the Eighth Amendment of the United States Constitution or under
Article 1 sections 15 and 24 of the California Constitution this Agreement bars a remedy sought
in such criminal prosecution or administrative action
11 No Characterization of Settlement Amount for the Purpose of Internal Revenue
Laws Nothing in the preceding Paragraph or in any provision of this Agreement constitutes an
agreement by the United States concerning the characterization of the Settlement Amount for
purposes ofthe Internal Revenue laws Title 26 of the United States Code
12 Denial of Claims The Settlement Amount shall not be decreased as a result of
the denial of claims for payment now being withheld from payment by any Medicare carrier or
intermediary or any state payer related to the Covered Conduct and the SCAN Parties agree not
11
to resubmit to any Medicare carrier or intermediary or any state payer any previously denied
claims related to the Covered Conduct and agree not to appeal any such denials of claims
13 Unallowable Costs The SCAN Parties agree to the following
a Unallowable Costs Defined All costs (as defined in the Federal
Acquisition Regulation 48 CFR sect 31205-47 and in Titles XVIII and XIX ofthe Social
Security Act 42 USC sectsect 1395-1395kkk-1 and 1396-1396w-5 and the regulations and official
program directives promulgated thereunder) incurred by or on behalf of the SCAN Parties andor
by their respective present or former officers directors employees shareholders and agents in
connection with
(1) the matters covered by this Agreement
(2) the Governments audit(s) and civil and any criminal
investigation(s) of any of the matters covered by this Agreement
(3) the SCAN Parties investigation defense and corrective actions
undertaken in response to the Governments audit(s) and civil and any
criminal investigation(s) in connection with the matters covered by this
Agreement (including attorneys fees)
(4) the negotiation and performance of this Agreement and
(5) the payment SCAN makes to the Governments pursuant to this
Agreement and any payments that the SCAN Parties may make to Relator
including costs and attorneys fees
are unallowable costs for government contracting purposes and under the Medicare Program
Medicaid Program TRICARE Program and Federal Employees Health Benefits Program
12
(FEHBP) or any other federal or state program (hereinafter referred to as Unallowable Costs)
b Future Treatment of Unallowable Costs Unallowable Costs shall be
separately determined and accounted for in nonreimbursable cost centers by the SCAN Parties
and the SCAN Parties shall not charge such Unallowable Costs directly or indirectly to any
contracts with the United States California or any state Medicaid program or seek payment for
such Unallowable Costs through any cost report cost statement information statement or
payment request submitted by the SCAN Parties or any of their respective subsidiaries or
affiliates to the Medicare Medicaid TRICARE or FEHBP Programs or to any other federal or
state program
c Treatment of Unallowable Costs Previously Submitted for Payment The
SCAN Parties further agree that within 90 days of the Effective Date of this Agreement they shall
identify to applicable Medicare and TRICARE fiscal intermediaries carriers andor contractors
and Medicaid and FEHBP fiscal agents any Unallowable Costs included in payments previously
sought from the United States California or any state Medicaid program including but not
limited to payments sought in any cost reports cost statements information reports or payment
requests already submitted by the SCAN Parties or any of their respective subsidiaries or
affiliates and shall request and agree that such cost reports cost statements information
reports or payment requests even if already settled be adjusted to account for the effect of the
inclusion of the unallowable costs The SCAN Parties agree that the Governments at a
minimum shall be entitled to recoup from them any overpayment plus applicable interest and
penalties as a result of the inclusion of such Unallowable Costs on previously-submitted cost
reports information reports cost statements or requests for payment
13
Any payments due after the adjustments have been made shall be paid to the
Governments pursuant to the direction of the United States Department of Justice andor the
affected agencies The Governments reserve their rights to disagree with any calculations
submitted by the SCAN Parties or any of their respective subsidiaries or affiliates on the effect of
inclusion of Unallowable Costs (as defined in this Paragraph) on the SCAN Parties or any of
their respective subsidiaries or affiliates cost reports cost statements or information reports
d Nothing in this Agreement shall constitute a waiver of the rights of the
Governments to audit examine or re-examine the SCAN Parties books and records to determine
that no Unallowable Costs have been claimed in accordance with the provisions of this
Paragraph
14 Benefit of the Parties This Agreement is intended to be for the benefit ofthe
Parties only The Parties do not release any claims against any other person or entity except to
the extent provided for in the Paragraph immediately below (waiver for beneficiaries Paragraph)
15 Waiver for Health Care Beneficiaries The SCAN Parties agree that they waive
and shall not seek payment for any of the health care billings covered by this Agreement from
any health care beneficiaries or their parents sponsors legally responsible individuals or third
party payors based upon the claims defined as Covered Conduct
16 Financial Condition SCAN warrants that it has reviewed its financial situation
and that it currently is solvent within the meaning of 11 USC sectsect 547(b)(3) and
548(a)(l)(B)(ii)(I) and shall remain solvent following payment to the Governments ofthe
Settlement Amount Further the Parties warrant that in evaluating whether to execute this
Agreement they (a) have intended that the mutual promises covenants and obligations set forth
14
constitute a contemporaneous exchange for new value given to SCAN within the meaning of 11
USC sect 547(c)(1) and (b) conclude that these mutual promises covenants and obligations do
in fact constitute such a contemporaneous exchange Further the Parties warrant that the mutual
promises covenants and obligations set forth herein are intended to and do in fact represent a
reasonably equivalent exchange of value that is not intended to hinder delay or defraud any
entity to which SCAN was or became indebted to on or after the date of this transfer within the
meaning of 11 USC sect 548(a)(l)
17 Costs With the exception ofRelators expenses attorneys fees and costs if any
under 31 USC sect 3730(d)(1) and California Government Codesect 12652(g)(8) each Party shall
bear its and his own legal and other costs fees and expenses incurred in connection with this
matter including the preparation and performance of this Agreement
18 Governing Law This Agreement is governed by the laws of the United States
The exclusive jurisdiction and venue for any dispute relating to this Agreement is the United
States District Court for the Central District of California
19 Voluntary Agreement Each Party represents that it and he freely voluntarily
knowingly and deliberately enters into this Agreement without any degree of duress
compulsion or misconduct by any of the Parties
20 No Representations Outside this Agreement Each of the Parties acknowledges
that except as expressly set forth in this Agreement no representations of any kind or character
have been made by any other party or that partys ~gents representatives or attorneys to induce
execution or delivery of this Agreement
21 Agreement Drafted by All Parties This Agreement shall be deemed to have been
15
drafted by all Parties to this Agreement and therefore shall not be construed against any Party for
reasons of drafting
22 Complete Agreement This Agreement constitutes the entire agreement of the
Parties with respect to the subject matter of this Agreement and may not be modified amended
or terminated except by a written agreement signed by the Parties specifically referring to this
Agreement and its relevant portions
23 The SCAN Parties Successors etc This Agreement is binding on the SCAN
Parties respective successors transferees and assigns
24 Relators Successors etc This Agreement is binding on Relators successors
transferees heirs and assigns
25 Disclosure All Parties consent to the Governments disclosure of this Agreement
and information about this Agreement to the public
26 Headings The headings in this Agreement are for convenience only do not
constitute a part of this Agreement and shall not limit or affect any of its provisions
27 Capacity to Execute The undersigned counsel represent and warrant that they are
fully authorized to execute this Agreement on behalf of the persons and entities indicated below
The Relator represents that he has the full power authority and competence necessary to enter
into this Agreement
28 Counterparts and Facsimiles This Agreement may be executed in counterparts
each of which constitutes an original and all of which constitute one and the same Agreement
Facsimiles of signatures shall constitute acceptable binding signatures for purposes of this
Agreement
16
29 Effective Date This Agreement is effective on the date of signature of the last
signatory to the Agreement (Effective Date of this Agreement)
In Witness Whereof the Parties through their duly authorized representatives hereunder
set their hands
THE UNITED STATES OF AMERICA
DATED WQ_Qf)_
DATED ~Itk)2shy
DATED_____
Assistant United States Attorney Central District of California
JOHN E LEE Assistant United States Attorney Central District of California
BY __________________
GREGORY E DEMSKE Chief Counsel to the Inspector General Office of Counsel to the Inspector General Office of Inspector General United States Department of Health and Human Services
17
29 Effective Date This Agreement is effective on the date of signature of the last
signatory to the Agreement (Effective Date ofthis Agreement)
In Witness Whereof the Parties through their duly authorized representatives hereunder
set their hands
DATED_____
DATED_____
DATED~
THE UNITED STAT_ES OF AMERlCA
BY ___________________ SUSAN R HERSHMAN Assistant United States Attorney Central District of California
BY -------------------------shyJOHNELEE Assistant United States Attorney
Central District of~
BY __~~~==---~--------------------------GREGORY E DEMSKE Chief Counsel to the Inspector General Office of Counsel to the Inspector General Office of Inspector General United States Department of Health and Human Services
17
--------------
THE STATE OF CALIFORNIA
l 3o)l~ BY __L_~_J_y~----DATED I
B~ V FRANKEL Supervising Deputy Attorney General State of California
DATED---____ BY ___________________________
LORA FOX MARTIN Deputy Attorney General State of California
BY ___________________________DATED_____ TOBY BOUGLAS
Director Department ofHealth Care Services
SCANHEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP B DEFENDANTS
BY ____________________________DATED____ ______ of SCAN Health Plan
DATED____ BY of Senior Care Action Network
----~
BY _______________________ middot DATED-middotmiddot_____ ________ of SCAN Group
18
------
THE STATE OF CALIFORNIA
BY ____________________________DATED_____ BRIAN V FRANKEL Supervising Deputy Attorney General State of California
DATED 1fetz_ ~I B~~~
LO FOX MARTIN Deputy Attorney General State of California
BY _________________________DATED_____ TOBY DOUGLAS
Director Department of Health Care Services
SCANHEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP B DEFENDANTS
DATED____ BY ______________~---------------- of SCAN Health Plan
BYDATEDmiddot--- shy --------~-----of Senior Care Action Network
BY _________________________DATED---_____ _______ of SCAN Group
18
middot THE STATEOF CALIFORNIA
DATED_------- BY _____~-----~------------BRIAN V FRANKEL Supervising DeputY Attorney General State of California
DATED______ BY __~----~-----------------LORA FOX MARTIN Deputy Attorney General State of California
lt)iy middot~~ gt c
~~DOUGLAS 7) middot Director
Department ofHealth Care Services
SCAN HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP DEFENDANTS
BY ________________________~DATED____
--~--- of SCAN Health Plan
DATED____ BY __________~----------of Senior Care Action Network middot------
DATED_____ BY _______________________ _ _______ of scAN Groupmiddot
18
THE STATE OF CALIFORNIA
DATED_____ BY ____________________________
BRIANV FRANKEL Supervising Deputy Attorney General State of California
DATED_____ BY ____________________________
LORA FOX MARTIN Deputy Attorney General State of California
BY ___________________________DATED_____
TOBY DOUGLAS Director Department of Health Care Services
SCAN HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP DEFENDANTS
BY _______lC-----~-----r--~~----------~~ealthPian
BY
BY
18
DATED dz
R GER S GOLDMAN Latham amp Watkins counsel for SCAN Health Plan Senior Care Action Network ann Scan Group
JAM~S Mmiddot S)YQBEN -RELATOR
DATED____ BY ____~--~----~~--- JAMES M SWOSEN
Approved as to form and contellt
DATED_~~__ BY -------=~----------WILLIAM HANAGAMI
The Hanagami Law Firm A Professional Corporation Counsel fDr James M Swoben
19
DATED____ BY _______________ DAVID J SCHINDLER Latham amp Watk1ns Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
DATED_____ BY _______________________
ROGERS GOLDMAN Latham amp Watkins Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
JAMES M SWOBEN- RELATOR
DATED9-() to1---BYbull ~~ JAMES M SWOBEN
(
Approved as to form and content
L ~ ~middotmiddotmiddot- BY middott I amp -middot-- - ____ DATED 1 5t I C ( vbull 7 1bull lr-~A7AGAJ11 The Hanagami Law Firm A Professional Corporation Counsel for James M Swoben
DATED______ BY ABRAM J ZINBERG Counsel for James M Swoben
19
Exhibit 1
20
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 90012 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel [UNDER SEAL] ) NOTICE OF [SEALED] AND
) [PROPOSED]ORDERTHEREON Plaintiffs )
) [LODGED UNDER SEAL v ) pursuant to the False Claim Act
) 31 USC sect 3730(b)(2) and (3)] [UNDER SEAL] )
) [CAPTION ALSO MAY DESIGNATE (Caption continued on next page) ) OTHER DOCUMENTS FILED OR
) LODGED CONCURRENTLY]
21
Defendants )
22
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 900 12 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel ) JAMES M SWOBEN ) NOTICE OF DISMISSAL OF ALL
Plaintiffs ) CLAIMS AGAINST DEFENDANTS v ) SCAN HEALTH PLAN SENIOR
SCAN HEALTH PLAN a California ) CARE ACTION NETWORK AND corporation fka SENIOR CARE ) SCAN GROUP PURSUANT TO ACTION NETWORK SENIOR CARE ) SETTLEMENT AGREEMENT ACTION NETWORK a business entity) CONSENTS OF THE UNITED (Caption continued on next page) ) STATES AND STATE OF form unknown SCAN GROUP a ) CALIFORNIA ATTORNEYS
23
California corporation [NAMES OF ) GENERAL THERETO AND REMAINING DEFENDANTS ) [PROPOSED]ORDERTHEREON SEALED] )
Defendants ) [LODGED UNDER SEAL ) pursuant to the False Claim Act
31 USC sect 3730(b)(2) and (3)]
[CAPTION ALSO MAY DESIGNATE OTHER DOCUMENTS FILED OR LODGED CONCURRENTLY]
Pursuant to Rule 4l(a) of the Federal Rules of Civil Procedure and subject to
and in order to effectuate the settlement agreement among
the Relator James M Swoben (Relator) Defendants SCAN Health Plan
Senior Care Action Network and SCAN Group (collectively the SCAN
Defendants) and the United States of America and the State of California
(collectively the Governments)
the Relator hereby upon the Order of the Court herein
Dismisses all claims for relief and causes of action filed in the above-
captioned action against Defendants SCAN HEALTH PLAN SENIOR CARE
ACTION NETWORK and SCAN GROUP said dismissal being (a) with
prejudice as to the Relator (b) without prejudice to the United States of America as
to the Ninth Claim for Relief of the Third Amended Complaint and (c) with
prejudice to the Governments as to all other claims for relief and causes of action in
all Complaints filed in the above-captioned action against Defendants SCAN
HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP to
the extent that those claims for relief and causes of action are or purport to be filed
pursuant to the False Claims Act 31 USC sect 3729 et seq and the California False
Claims Act California Government Codesect 12650 et seq
Except that the Relator does not dismiss the Relators claim for a relators
share to be paid by the Governments pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(2) As to this claim the Relator
respectfully requests that the Court retain jurisdiction to determine if necessary the
relators share that the Relator should obtain pursuant to 31 USC sect 3730( d)(l) and
California Government Codesect 12652(g)(2) and
Except that the Relator does not dismiss the Relators claim for payment by
any and all of the SCAN Defendants to the Relator of expenses fees and costs
pursuant to 31 USC sect 3730(d)(l) and California Government Code
sect 12652(g)(8) As to this claim the Relator respectfully requests that the Court
retain jurisdiction to determine if necessary the appropriate expenses fees and
25
costs that the Relator should obtain pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(8)
Respectfully submitted
DATED _____ 2012 WILLIAM HANAGAMI ESQ The Hanagami Law Firm
ABRAM J ZINBERG ESQ Attorney at Law
WILLIAM HANAGAMI ESQ Attorneys for Relator JAMES M SWOBEN
26
CONSENT OF THE ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA
Pursuant to 31 USC sect 3730(b )(1) the Attorney General of the United
States of America by and through the undersigned consents to the foregoing
dismissal The reason for the consent of the Attorney General is that the dismissal
is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED _____ 2012 ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section
JOHN E LEE Assistant United States Attorney
Attorneys for the UNITED STATES OF AMERICA
CONSENT OF THE ATTORNEY GENERAL
OF THE STATE OF CALIFORNIA
Pursuant to California Government Codesect 12652(c)(1) the Attorney
General of the State of California by and through the undersigned consents to the
foregoing dismissal The reason for the consent of the Attorney General is that the
dismissal is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED 2012 ---- shy KAMALA D HARRIS Attorney General of California BRIAN V FRANKEL Supervising Deputy Attorney General
LORA FOX MARTIN Deputy Attorney General
Attorneys for the STATE OF CALIFORNIA
IT IS SO ORDERED
This ____ day of _____ 2012
UNITED STATES DISTRICT JUDGE
28
b Any criminal liability
c Except as explicitly stated in this Agreement any administrative liability
including mandatory exclusion from Federal or state health care programs
d Any liability to the United States (or its agencies) or to California (or its
agencies) for any conduct other than (1) the Covered Conduct and (2) the conduct alleged as to
the SCAN Parties in Relators Complaints in the Civil Action subject to the agreed construction
set forth in Paragraph 3 of this Agreement of the Seventh Claim for Relief in the Second and
Third Amended Complaints and subject to subparagraph (e) below
e Except as set forth in Paragraph C2 of this Agreement any liability
arising under the Ninth Claim for Relief in the Third Amended Complaint
f Any liability based upon obligations created by this Agreement
g Any liability for express or implied warranty claims or other claims for
defective or deficient products or services including quality of goods and services
h Any liability for failure to deliver goods or services due
1 Any liability for personal injury or property damage or for other
consequential damages arising from the Covered Conduct
J Any liability of individuals
k Any liability for SCANs receipt of payments from Medi-Cal for services
to beneficiaries who were receiving similar services from counties through the In-Home Support
Services Program (IHSS)
1 Any liability for SCANs certifications of required nursing facility levels of
care made on or after January 1 2009
8
7 Release of the SCAN Parties by Relator In consideration of the obligations of the
SCAN Parties in this Agreement~ conditioned upon the full payment of the Settlement Amount
Relator for himself and for his heirs successors attorneys agents and assigns agrees to
generally release acquit waive and forever discharge the SCAN Parties and all the current and
former officers and directors employees agents attorneys owners and shareholders of the
SCAN Parties from any and all rights claims expenses debts liabilities demands obligations
costs damages injuries actions and causes of action of every nature whether known or
unknown suspected or unsuspected in law or in equity from the beginning of the world to the
day of these presents including but not limited to those he advanced or could have advanced in
the Civil Action or otherwise under the False Claims Act 31 USC sectsect 3729-3733 for expenses
or attorneys fees and costs under 31 USC sect 3730(h) or under 31 USC sect 3730(h) for
employment decisions by the SCAN Parties under the California False Claims Act Cal
Government Codesectsect 12650-12656 andor other statutory or common law doctrines of payment
by mistake unjust enrichment breach of contract fraud or the like except however that
Relator does not release the aforesaid persons and entities from any liability they may have for
payment of Relators expenses attorneys fees and costs if any under 31 USC sect 3730(d)(l)
and California Government Code sect 12652(g)(8) Except for the foregoing exception the
foregoing sentence is intended to be interpreted as a general release Furthermore except for the
foregoing exception Relator covenants not to sue the SCAN Parties its current and former
officers and directors employees agents attorneys and shareholders of the SCAN Parties witli
respect to any and all rights claims expenses debts liabilities demands obligations costs
damages injuries actions and causes of action of every nature whether known or unknown
9
suspected or unsuspected in law or in equity including those for attorneys fees and costs arising
prior to the Effective Date ofthis Agreement and not covered by 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(8)
8 Release of the Governments by the SCAN Parties The SCAN Parties fully and
finally release the Governments and their respective agencies officers agents employees and
servants from any claims (including attorneys fees costs and expenses of every kind and
however denominated) that the SCAN Parties have asserted could have asserted or may assert in
the future against the Governments and their respective agencies officers agents employees
and servants related to or arising out of the Covered Conduct the Civil Action the
Governments investigation of the Covered Conduct and the Civil Action and any ensuing civil
prosecution
9 This Agreement is Fair Adequate and Reasonable Relator and his heirs
successors attorneys agents and assigns do not and shall not object to this Agreement and
instead agree and confirm that this Agreement and the settlement effectuated herein are fair
adequate and reasonable under all ofthe circumstances pursuant to 31 USC sect 3730(c)(2)(B)
and California Government Codesect 12652(e)(2)(B) The Governments and Relator and his heirs
successors attorneys agents and assigns agree that they each retain all of their rights on the
issue of the share percentage if any that Relator should receive of any proceeds of the settlement
of his claims and that no agreements concerning any Relator share have been reached to date
The Governments and Relator and his heirs successors attorneys agents and assigns agree that
neither this Agreement nor any part of it nor any intervention by the United States andor
California in the Civil Action in order to dismiss the Civil Action or for any other purpose nor
10
any dismissal of the Civil Action nor any other circumstance (1) shall waive or otherwise affect
the ability of the Governments to contend that Relator is barred from sharing in any or all of the
proceeds of this Agreement or to contend that some or all of the Covered Conduct alleged in the
Recitals paragraph C of this Agreement is not alleged in Relators Complaints in the Civil
Action or (2) shall waive or otherwise affect Relators ability to contend that he should share in
any or all of the proceeds of this Agreement or to contend that some or all of the Covered
Conduct alleged in the Recitals paragraph C of this Agreement is alleged in Relators
Complaints in the Civil Action
10 Double Jeopardy and Excessive Fines Clauses The SCAN Parties waive and
shall not assert any defenses they may have to any criminal prosecution or administrative action
relating to the Covered Conduct that may be based in whole or in part on a contention that under
the Double Jeopardy Clause in the Fifth Amendment ofthe United States Constitution the
Excessive Fines Clause in the Eighth Amendment of the United States Constitution or under
Article 1 sections 15 and 24 of the California Constitution this Agreement bars a remedy sought
in such criminal prosecution or administrative action
11 No Characterization of Settlement Amount for the Purpose of Internal Revenue
Laws Nothing in the preceding Paragraph or in any provision of this Agreement constitutes an
agreement by the United States concerning the characterization of the Settlement Amount for
purposes ofthe Internal Revenue laws Title 26 of the United States Code
12 Denial of Claims The Settlement Amount shall not be decreased as a result of
the denial of claims for payment now being withheld from payment by any Medicare carrier or
intermediary or any state payer related to the Covered Conduct and the SCAN Parties agree not
11
to resubmit to any Medicare carrier or intermediary or any state payer any previously denied
claims related to the Covered Conduct and agree not to appeal any such denials of claims
13 Unallowable Costs The SCAN Parties agree to the following
a Unallowable Costs Defined All costs (as defined in the Federal
Acquisition Regulation 48 CFR sect 31205-47 and in Titles XVIII and XIX ofthe Social
Security Act 42 USC sectsect 1395-1395kkk-1 and 1396-1396w-5 and the regulations and official
program directives promulgated thereunder) incurred by or on behalf of the SCAN Parties andor
by their respective present or former officers directors employees shareholders and agents in
connection with
(1) the matters covered by this Agreement
(2) the Governments audit(s) and civil and any criminal
investigation(s) of any of the matters covered by this Agreement
(3) the SCAN Parties investigation defense and corrective actions
undertaken in response to the Governments audit(s) and civil and any
criminal investigation(s) in connection with the matters covered by this
Agreement (including attorneys fees)
(4) the negotiation and performance of this Agreement and
(5) the payment SCAN makes to the Governments pursuant to this
Agreement and any payments that the SCAN Parties may make to Relator
including costs and attorneys fees
are unallowable costs for government contracting purposes and under the Medicare Program
Medicaid Program TRICARE Program and Federal Employees Health Benefits Program
12
(FEHBP) or any other federal or state program (hereinafter referred to as Unallowable Costs)
b Future Treatment of Unallowable Costs Unallowable Costs shall be
separately determined and accounted for in nonreimbursable cost centers by the SCAN Parties
and the SCAN Parties shall not charge such Unallowable Costs directly or indirectly to any
contracts with the United States California or any state Medicaid program or seek payment for
such Unallowable Costs through any cost report cost statement information statement or
payment request submitted by the SCAN Parties or any of their respective subsidiaries or
affiliates to the Medicare Medicaid TRICARE or FEHBP Programs or to any other federal or
state program
c Treatment of Unallowable Costs Previously Submitted for Payment The
SCAN Parties further agree that within 90 days of the Effective Date of this Agreement they shall
identify to applicable Medicare and TRICARE fiscal intermediaries carriers andor contractors
and Medicaid and FEHBP fiscal agents any Unallowable Costs included in payments previously
sought from the United States California or any state Medicaid program including but not
limited to payments sought in any cost reports cost statements information reports or payment
requests already submitted by the SCAN Parties or any of their respective subsidiaries or
affiliates and shall request and agree that such cost reports cost statements information
reports or payment requests even if already settled be adjusted to account for the effect of the
inclusion of the unallowable costs The SCAN Parties agree that the Governments at a
minimum shall be entitled to recoup from them any overpayment plus applicable interest and
penalties as a result of the inclusion of such Unallowable Costs on previously-submitted cost
reports information reports cost statements or requests for payment
13
Any payments due after the adjustments have been made shall be paid to the
Governments pursuant to the direction of the United States Department of Justice andor the
affected agencies The Governments reserve their rights to disagree with any calculations
submitted by the SCAN Parties or any of their respective subsidiaries or affiliates on the effect of
inclusion of Unallowable Costs (as defined in this Paragraph) on the SCAN Parties or any of
their respective subsidiaries or affiliates cost reports cost statements or information reports
d Nothing in this Agreement shall constitute a waiver of the rights of the
Governments to audit examine or re-examine the SCAN Parties books and records to determine
that no Unallowable Costs have been claimed in accordance with the provisions of this
Paragraph
14 Benefit of the Parties This Agreement is intended to be for the benefit ofthe
Parties only The Parties do not release any claims against any other person or entity except to
the extent provided for in the Paragraph immediately below (waiver for beneficiaries Paragraph)
15 Waiver for Health Care Beneficiaries The SCAN Parties agree that they waive
and shall not seek payment for any of the health care billings covered by this Agreement from
any health care beneficiaries or their parents sponsors legally responsible individuals or third
party payors based upon the claims defined as Covered Conduct
16 Financial Condition SCAN warrants that it has reviewed its financial situation
and that it currently is solvent within the meaning of 11 USC sectsect 547(b)(3) and
548(a)(l)(B)(ii)(I) and shall remain solvent following payment to the Governments ofthe
Settlement Amount Further the Parties warrant that in evaluating whether to execute this
Agreement they (a) have intended that the mutual promises covenants and obligations set forth
14
constitute a contemporaneous exchange for new value given to SCAN within the meaning of 11
USC sect 547(c)(1) and (b) conclude that these mutual promises covenants and obligations do
in fact constitute such a contemporaneous exchange Further the Parties warrant that the mutual
promises covenants and obligations set forth herein are intended to and do in fact represent a
reasonably equivalent exchange of value that is not intended to hinder delay or defraud any
entity to which SCAN was or became indebted to on or after the date of this transfer within the
meaning of 11 USC sect 548(a)(l)
17 Costs With the exception ofRelators expenses attorneys fees and costs if any
under 31 USC sect 3730(d)(1) and California Government Codesect 12652(g)(8) each Party shall
bear its and his own legal and other costs fees and expenses incurred in connection with this
matter including the preparation and performance of this Agreement
18 Governing Law This Agreement is governed by the laws of the United States
The exclusive jurisdiction and venue for any dispute relating to this Agreement is the United
States District Court for the Central District of California
19 Voluntary Agreement Each Party represents that it and he freely voluntarily
knowingly and deliberately enters into this Agreement without any degree of duress
compulsion or misconduct by any of the Parties
20 No Representations Outside this Agreement Each of the Parties acknowledges
that except as expressly set forth in this Agreement no representations of any kind or character
have been made by any other party or that partys ~gents representatives or attorneys to induce
execution or delivery of this Agreement
21 Agreement Drafted by All Parties This Agreement shall be deemed to have been
15
drafted by all Parties to this Agreement and therefore shall not be construed against any Party for
reasons of drafting
22 Complete Agreement This Agreement constitutes the entire agreement of the
Parties with respect to the subject matter of this Agreement and may not be modified amended
or terminated except by a written agreement signed by the Parties specifically referring to this
Agreement and its relevant portions
23 The SCAN Parties Successors etc This Agreement is binding on the SCAN
Parties respective successors transferees and assigns
24 Relators Successors etc This Agreement is binding on Relators successors
transferees heirs and assigns
25 Disclosure All Parties consent to the Governments disclosure of this Agreement
and information about this Agreement to the public
26 Headings The headings in this Agreement are for convenience only do not
constitute a part of this Agreement and shall not limit or affect any of its provisions
27 Capacity to Execute The undersigned counsel represent and warrant that they are
fully authorized to execute this Agreement on behalf of the persons and entities indicated below
The Relator represents that he has the full power authority and competence necessary to enter
into this Agreement
28 Counterparts and Facsimiles This Agreement may be executed in counterparts
each of which constitutes an original and all of which constitute one and the same Agreement
Facsimiles of signatures shall constitute acceptable binding signatures for purposes of this
Agreement
16
29 Effective Date This Agreement is effective on the date of signature of the last
signatory to the Agreement (Effective Date of this Agreement)
In Witness Whereof the Parties through their duly authorized representatives hereunder
set their hands
THE UNITED STATES OF AMERICA
DATED WQ_Qf)_
DATED ~Itk)2shy
DATED_____
Assistant United States Attorney Central District of California
JOHN E LEE Assistant United States Attorney Central District of California
BY __________________
GREGORY E DEMSKE Chief Counsel to the Inspector General Office of Counsel to the Inspector General Office of Inspector General United States Department of Health and Human Services
17
29 Effective Date This Agreement is effective on the date of signature of the last
signatory to the Agreement (Effective Date ofthis Agreement)
In Witness Whereof the Parties through their duly authorized representatives hereunder
set their hands
DATED_____
DATED_____
DATED~
THE UNITED STAT_ES OF AMERlCA
BY ___________________ SUSAN R HERSHMAN Assistant United States Attorney Central District of California
BY -------------------------shyJOHNELEE Assistant United States Attorney
Central District of~
BY __~~~==---~--------------------------GREGORY E DEMSKE Chief Counsel to the Inspector General Office of Counsel to the Inspector General Office of Inspector General United States Department of Health and Human Services
17
--------------
THE STATE OF CALIFORNIA
l 3o)l~ BY __L_~_J_y~----DATED I
B~ V FRANKEL Supervising Deputy Attorney General State of California
DATED---____ BY ___________________________
LORA FOX MARTIN Deputy Attorney General State of California
BY ___________________________DATED_____ TOBY BOUGLAS
Director Department ofHealth Care Services
SCANHEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP B DEFENDANTS
BY ____________________________DATED____ ______ of SCAN Health Plan
DATED____ BY of Senior Care Action Network
----~
BY _______________________ middot DATED-middotmiddot_____ ________ of SCAN Group
18
------
THE STATE OF CALIFORNIA
BY ____________________________DATED_____ BRIAN V FRANKEL Supervising Deputy Attorney General State of California
DATED 1fetz_ ~I B~~~
LO FOX MARTIN Deputy Attorney General State of California
BY _________________________DATED_____ TOBY DOUGLAS
Director Department of Health Care Services
SCANHEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP B DEFENDANTS
DATED____ BY ______________~---------------- of SCAN Health Plan
BYDATEDmiddot--- shy --------~-----of Senior Care Action Network
BY _________________________DATED---_____ _______ of SCAN Group
18
middot THE STATEOF CALIFORNIA
DATED_------- BY _____~-----~------------BRIAN V FRANKEL Supervising DeputY Attorney General State of California
DATED______ BY __~----~-----------------LORA FOX MARTIN Deputy Attorney General State of California
lt)iy middot~~ gt c
~~DOUGLAS 7) middot Director
Department ofHealth Care Services
SCAN HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP DEFENDANTS
BY ________________________~DATED____
--~--- of SCAN Health Plan
DATED____ BY __________~----------of Senior Care Action Network middot------
DATED_____ BY _______________________ _ _______ of scAN Groupmiddot
18
THE STATE OF CALIFORNIA
DATED_____ BY ____________________________
BRIANV FRANKEL Supervising Deputy Attorney General State of California
DATED_____ BY ____________________________
LORA FOX MARTIN Deputy Attorney General State of California
BY ___________________________DATED_____
TOBY DOUGLAS Director Department of Health Care Services
SCAN HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP DEFENDANTS
BY _______lC-----~-----r--~~----------~~ealthPian
BY
BY
18
DATED dz
R GER S GOLDMAN Latham amp Watkins counsel for SCAN Health Plan Senior Care Action Network ann Scan Group
JAM~S Mmiddot S)YQBEN -RELATOR
DATED____ BY ____~--~----~~--- JAMES M SWOSEN
Approved as to form and contellt
DATED_~~__ BY -------=~----------WILLIAM HANAGAMI
The Hanagami Law Firm A Professional Corporation Counsel fDr James M Swoben
19
DATED____ BY _______________ DAVID J SCHINDLER Latham amp Watk1ns Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
DATED_____ BY _______________________
ROGERS GOLDMAN Latham amp Watkins Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
JAMES M SWOBEN- RELATOR
DATED9-() to1---BYbull ~~ JAMES M SWOBEN
(
Approved as to form and content
L ~ ~middotmiddotmiddot- BY middott I amp -middot-- - ____ DATED 1 5t I C ( vbull 7 1bull lr-~A7AGAJ11 The Hanagami Law Firm A Professional Corporation Counsel for James M Swoben
DATED______ BY ABRAM J ZINBERG Counsel for James M Swoben
19
Exhibit 1
20
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 90012 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel [UNDER SEAL] ) NOTICE OF [SEALED] AND
) [PROPOSED]ORDERTHEREON Plaintiffs )
) [LODGED UNDER SEAL v ) pursuant to the False Claim Act
) 31 USC sect 3730(b)(2) and (3)] [UNDER SEAL] )
) [CAPTION ALSO MAY DESIGNATE (Caption continued on next page) ) OTHER DOCUMENTS FILED OR
) LODGED CONCURRENTLY]
21
Defendants )
22
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 900 12 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel ) JAMES M SWOBEN ) NOTICE OF DISMISSAL OF ALL
Plaintiffs ) CLAIMS AGAINST DEFENDANTS v ) SCAN HEALTH PLAN SENIOR
SCAN HEALTH PLAN a California ) CARE ACTION NETWORK AND corporation fka SENIOR CARE ) SCAN GROUP PURSUANT TO ACTION NETWORK SENIOR CARE ) SETTLEMENT AGREEMENT ACTION NETWORK a business entity) CONSENTS OF THE UNITED (Caption continued on next page) ) STATES AND STATE OF form unknown SCAN GROUP a ) CALIFORNIA ATTORNEYS
23
California corporation [NAMES OF ) GENERAL THERETO AND REMAINING DEFENDANTS ) [PROPOSED]ORDERTHEREON SEALED] )
Defendants ) [LODGED UNDER SEAL ) pursuant to the False Claim Act
31 USC sect 3730(b)(2) and (3)]
[CAPTION ALSO MAY DESIGNATE OTHER DOCUMENTS FILED OR LODGED CONCURRENTLY]
Pursuant to Rule 4l(a) of the Federal Rules of Civil Procedure and subject to
and in order to effectuate the settlement agreement among
the Relator James M Swoben (Relator) Defendants SCAN Health Plan
Senior Care Action Network and SCAN Group (collectively the SCAN
Defendants) and the United States of America and the State of California
(collectively the Governments)
the Relator hereby upon the Order of the Court herein
Dismisses all claims for relief and causes of action filed in the above-
captioned action against Defendants SCAN HEALTH PLAN SENIOR CARE
ACTION NETWORK and SCAN GROUP said dismissal being (a) with
prejudice as to the Relator (b) without prejudice to the United States of America as
to the Ninth Claim for Relief of the Third Amended Complaint and (c) with
prejudice to the Governments as to all other claims for relief and causes of action in
all Complaints filed in the above-captioned action against Defendants SCAN
HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP to
the extent that those claims for relief and causes of action are or purport to be filed
pursuant to the False Claims Act 31 USC sect 3729 et seq and the California False
Claims Act California Government Codesect 12650 et seq
Except that the Relator does not dismiss the Relators claim for a relators
share to be paid by the Governments pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(2) As to this claim the Relator
respectfully requests that the Court retain jurisdiction to determine if necessary the
relators share that the Relator should obtain pursuant to 31 USC sect 3730( d)(l) and
California Government Codesect 12652(g)(2) and
Except that the Relator does not dismiss the Relators claim for payment by
any and all of the SCAN Defendants to the Relator of expenses fees and costs
pursuant to 31 USC sect 3730(d)(l) and California Government Code
sect 12652(g)(8) As to this claim the Relator respectfully requests that the Court
retain jurisdiction to determine if necessary the appropriate expenses fees and
25
costs that the Relator should obtain pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(8)
Respectfully submitted
DATED _____ 2012 WILLIAM HANAGAMI ESQ The Hanagami Law Firm
ABRAM J ZINBERG ESQ Attorney at Law
WILLIAM HANAGAMI ESQ Attorneys for Relator JAMES M SWOBEN
26
CONSENT OF THE ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA
Pursuant to 31 USC sect 3730(b )(1) the Attorney General of the United
States of America by and through the undersigned consents to the foregoing
dismissal The reason for the consent of the Attorney General is that the dismissal
is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED _____ 2012 ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section
JOHN E LEE Assistant United States Attorney
Attorneys for the UNITED STATES OF AMERICA
CONSENT OF THE ATTORNEY GENERAL
OF THE STATE OF CALIFORNIA
Pursuant to California Government Codesect 12652(c)(1) the Attorney
General of the State of California by and through the undersigned consents to the
foregoing dismissal The reason for the consent of the Attorney General is that the
dismissal is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED 2012 ---- shy KAMALA D HARRIS Attorney General of California BRIAN V FRANKEL Supervising Deputy Attorney General
LORA FOX MARTIN Deputy Attorney General
Attorneys for the STATE OF CALIFORNIA
IT IS SO ORDERED
This ____ day of _____ 2012
UNITED STATES DISTRICT JUDGE
28
7 Release of the SCAN Parties by Relator In consideration of the obligations of the
SCAN Parties in this Agreement~ conditioned upon the full payment of the Settlement Amount
Relator for himself and for his heirs successors attorneys agents and assigns agrees to
generally release acquit waive and forever discharge the SCAN Parties and all the current and
former officers and directors employees agents attorneys owners and shareholders of the
SCAN Parties from any and all rights claims expenses debts liabilities demands obligations
costs damages injuries actions and causes of action of every nature whether known or
unknown suspected or unsuspected in law or in equity from the beginning of the world to the
day of these presents including but not limited to those he advanced or could have advanced in
the Civil Action or otherwise under the False Claims Act 31 USC sectsect 3729-3733 for expenses
or attorneys fees and costs under 31 USC sect 3730(h) or under 31 USC sect 3730(h) for
employment decisions by the SCAN Parties under the California False Claims Act Cal
Government Codesectsect 12650-12656 andor other statutory or common law doctrines of payment
by mistake unjust enrichment breach of contract fraud or the like except however that
Relator does not release the aforesaid persons and entities from any liability they may have for
payment of Relators expenses attorneys fees and costs if any under 31 USC sect 3730(d)(l)
and California Government Code sect 12652(g)(8) Except for the foregoing exception the
foregoing sentence is intended to be interpreted as a general release Furthermore except for the
foregoing exception Relator covenants not to sue the SCAN Parties its current and former
officers and directors employees agents attorneys and shareholders of the SCAN Parties witli
respect to any and all rights claims expenses debts liabilities demands obligations costs
damages injuries actions and causes of action of every nature whether known or unknown
9
suspected or unsuspected in law or in equity including those for attorneys fees and costs arising
prior to the Effective Date ofthis Agreement and not covered by 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(8)
8 Release of the Governments by the SCAN Parties The SCAN Parties fully and
finally release the Governments and their respective agencies officers agents employees and
servants from any claims (including attorneys fees costs and expenses of every kind and
however denominated) that the SCAN Parties have asserted could have asserted or may assert in
the future against the Governments and their respective agencies officers agents employees
and servants related to or arising out of the Covered Conduct the Civil Action the
Governments investigation of the Covered Conduct and the Civil Action and any ensuing civil
prosecution
9 This Agreement is Fair Adequate and Reasonable Relator and his heirs
successors attorneys agents and assigns do not and shall not object to this Agreement and
instead agree and confirm that this Agreement and the settlement effectuated herein are fair
adequate and reasonable under all ofthe circumstances pursuant to 31 USC sect 3730(c)(2)(B)
and California Government Codesect 12652(e)(2)(B) The Governments and Relator and his heirs
successors attorneys agents and assigns agree that they each retain all of their rights on the
issue of the share percentage if any that Relator should receive of any proceeds of the settlement
of his claims and that no agreements concerning any Relator share have been reached to date
The Governments and Relator and his heirs successors attorneys agents and assigns agree that
neither this Agreement nor any part of it nor any intervention by the United States andor
California in the Civil Action in order to dismiss the Civil Action or for any other purpose nor
10
any dismissal of the Civil Action nor any other circumstance (1) shall waive or otherwise affect
the ability of the Governments to contend that Relator is barred from sharing in any or all of the
proceeds of this Agreement or to contend that some or all of the Covered Conduct alleged in the
Recitals paragraph C of this Agreement is not alleged in Relators Complaints in the Civil
Action or (2) shall waive or otherwise affect Relators ability to contend that he should share in
any or all of the proceeds of this Agreement or to contend that some or all of the Covered
Conduct alleged in the Recitals paragraph C of this Agreement is alleged in Relators
Complaints in the Civil Action
10 Double Jeopardy and Excessive Fines Clauses The SCAN Parties waive and
shall not assert any defenses they may have to any criminal prosecution or administrative action
relating to the Covered Conduct that may be based in whole or in part on a contention that under
the Double Jeopardy Clause in the Fifth Amendment ofthe United States Constitution the
Excessive Fines Clause in the Eighth Amendment of the United States Constitution or under
Article 1 sections 15 and 24 of the California Constitution this Agreement bars a remedy sought
in such criminal prosecution or administrative action
11 No Characterization of Settlement Amount for the Purpose of Internal Revenue
Laws Nothing in the preceding Paragraph or in any provision of this Agreement constitutes an
agreement by the United States concerning the characterization of the Settlement Amount for
purposes ofthe Internal Revenue laws Title 26 of the United States Code
12 Denial of Claims The Settlement Amount shall not be decreased as a result of
the denial of claims for payment now being withheld from payment by any Medicare carrier or
intermediary or any state payer related to the Covered Conduct and the SCAN Parties agree not
11
to resubmit to any Medicare carrier or intermediary or any state payer any previously denied
claims related to the Covered Conduct and agree not to appeal any such denials of claims
13 Unallowable Costs The SCAN Parties agree to the following
a Unallowable Costs Defined All costs (as defined in the Federal
Acquisition Regulation 48 CFR sect 31205-47 and in Titles XVIII and XIX ofthe Social
Security Act 42 USC sectsect 1395-1395kkk-1 and 1396-1396w-5 and the regulations and official
program directives promulgated thereunder) incurred by or on behalf of the SCAN Parties andor
by their respective present or former officers directors employees shareholders and agents in
connection with
(1) the matters covered by this Agreement
(2) the Governments audit(s) and civil and any criminal
investigation(s) of any of the matters covered by this Agreement
(3) the SCAN Parties investigation defense and corrective actions
undertaken in response to the Governments audit(s) and civil and any
criminal investigation(s) in connection with the matters covered by this
Agreement (including attorneys fees)
(4) the negotiation and performance of this Agreement and
(5) the payment SCAN makes to the Governments pursuant to this
Agreement and any payments that the SCAN Parties may make to Relator
including costs and attorneys fees
are unallowable costs for government contracting purposes and under the Medicare Program
Medicaid Program TRICARE Program and Federal Employees Health Benefits Program
12
(FEHBP) or any other federal or state program (hereinafter referred to as Unallowable Costs)
b Future Treatment of Unallowable Costs Unallowable Costs shall be
separately determined and accounted for in nonreimbursable cost centers by the SCAN Parties
and the SCAN Parties shall not charge such Unallowable Costs directly or indirectly to any
contracts with the United States California or any state Medicaid program or seek payment for
such Unallowable Costs through any cost report cost statement information statement or
payment request submitted by the SCAN Parties or any of their respective subsidiaries or
affiliates to the Medicare Medicaid TRICARE or FEHBP Programs or to any other federal or
state program
c Treatment of Unallowable Costs Previously Submitted for Payment The
SCAN Parties further agree that within 90 days of the Effective Date of this Agreement they shall
identify to applicable Medicare and TRICARE fiscal intermediaries carriers andor contractors
and Medicaid and FEHBP fiscal agents any Unallowable Costs included in payments previously
sought from the United States California or any state Medicaid program including but not
limited to payments sought in any cost reports cost statements information reports or payment
requests already submitted by the SCAN Parties or any of their respective subsidiaries or
affiliates and shall request and agree that such cost reports cost statements information
reports or payment requests even if already settled be adjusted to account for the effect of the
inclusion of the unallowable costs The SCAN Parties agree that the Governments at a
minimum shall be entitled to recoup from them any overpayment plus applicable interest and
penalties as a result of the inclusion of such Unallowable Costs on previously-submitted cost
reports information reports cost statements or requests for payment
13
Any payments due after the adjustments have been made shall be paid to the
Governments pursuant to the direction of the United States Department of Justice andor the
affected agencies The Governments reserve their rights to disagree with any calculations
submitted by the SCAN Parties or any of their respective subsidiaries or affiliates on the effect of
inclusion of Unallowable Costs (as defined in this Paragraph) on the SCAN Parties or any of
their respective subsidiaries or affiliates cost reports cost statements or information reports
d Nothing in this Agreement shall constitute a waiver of the rights of the
Governments to audit examine or re-examine the SCAN Parties books and records to determine
that no Unallowable Costs have been claimed in accordance with the provisions of this
Paragraph
14 Benefit of the Parties This Agreement is intended to be for the benefit ofthe
Parties only The Parties do not release any claims against any other person or entity except to
the extent provided for in the Paragraph immediately below (waiver for beneficiaries Paragraph)
15 Waiver for Health Care Beneficiaries The SCAN Parties agree that they waive
and shall not seek payment for any of the health care billings covered by this Agreement from
any health care beneficiaries or their parents sponsors legally responsible individuals or third
party payors based upon the claims defined as Covered Conduct
16 Financial Condition SCAN warrants that it has reviewed its financial situation
and that it currently is solvent within the meaning of 11 USC sectsect 547(b)(3) and
548(a)(l)(B)(ii)(I) and shall remain solvent following payment to the Governments ofthe
Settlement Amount Further the Parties warrant that in evaluating whether to execute this
Agreement they (a) have intended that the mutual promises covenants and obligations set forth
14
constitute a contemporaneous exchange for new value given to SCAN within the meaning of 11
USC sect 547(c)(1) and (b) conclude that these mutual promises covenants and obligations do
in fact constitute such a contemporaneous exchange Further the Parties warrant that the mutual
promises covenants and obligations set forth herein are intended to and do in fact represent a
reasonably equivalent exchange of value that is not intended to hinder delay or defraud any
entity to which SCAN was or became indebted to on or after the date of this transfer within the
meaning of 11 USC sect 548(a)(l)
17 Costs With the exception ofRelators expenses attorneys fees and costs if any
under 31 USC sect 3730(d)(1) and California Government Codesect 12652(g)(8) each Party shall
bear its and his own legal and other costs fees and expenses incurred in connection with this
matter including the preparation and performance of this Agreement
18 Governing Law This Agreement is governed by the laws of the United States
The exclusive jurisdiction and venue for any dispute relating to this Agreement is the United
States District Court for the Central District of California
19 Voluntary Agreement Each Party represents that it and he freely voluntarily
knowingly and deliberately enters into this Agreement without any degree of duress
compulsion or misconduct by any of the Parties
20 No Representations Outside this Agreement Each of the Parties acknowledges
that except as expressly set forth in this Agreement no representations of any kind or character
have been made by any other party or that partys ~gents representatives or attorneys to induce
execution or delivery of this Agreement
21 Agreement Drafted by All Parties This Agreement shall be deemed to have been
15
drafted by all Parties to this Agreement and therefore shall not be construed against any Party for
reasons of drafting
22 Complete Agreement This Agreement constitutes the entire agreement of the
Parties with respect to the subject matter of this Agreement and may not be modified amended
or terminated except by a written agreement signed by the Parties specifically referring to this
Agreement and its relevant portions
23 The SCAN Parties Successors etc This Agreement is binding on the SCAN
Parties respective successors transferees and assigns
24 Relators Successors etc This Agreement is binding on Relators successors
transferees heirs and assigns
25 Disclosure All Parties consent to the Governments disclosure of this Agreement
and information about this Agreement to the public
26 Headings The headings in this Agreement are for convenience only do not
constitute a part of this Agreement and shall not limit or affect any of its provisions
27 Capacity to Execute The undersigned counsel represent and warrant that they are
fully authorized to execute this Agreement on behalf of the persons and entities indicated below
The Relator represents that he has the full power authority and competence necessary to enter
into this Agreement
28 Counterparts and Facsimiles This Agreement may be executed in counterparts
each of which constitutes an original and all of which constitute one and the same Agreement
Facsimiles of signatures shall constitute acceptable binding signatures for purposes of this
Agreement
16
29 Effective Date This Agreement is effective on the date of signature of the last
signatory to the Agreement (Effective Date of this Agreement)
In Witness Whereof the Parties through their duly authorized representatives hereunder
set their hands
THE UNITED STATES OF AMERICA
DATED WQ_Qf)_
DATED ~Itk)2shy
DATED_____
Assistant United States Attorney Central District of California
JOHN E LEE Assistant United States Attorney Central District of California
BY __________________
GREGORY E DEMSKE Chief Counsel to the Inspector General Office of Counsel to the Inspector General Office of Inspector General United States Department of Health and Human Services
17
29 Effective Date This Agreement is effective on the date of signature of the last
signatory to the Agreement (Effective Date ofthis Agreement)
In Witness Whereof the Parties through their duly authorized representatives hereunder
set their hands
DATED_____
DATED_____
DATED~
THE UNITED STAT_ES OF AMERlCA
BY ___________________ SUSAN R HERSHMAN Assistant United States Attorney Central District of California
BY -------------------------shyJOHNELEE Assistant United States Attorney
Central District of~
BY __~~~==---~--------------------------GREGORY E DEMSKE Chief Counsel to the Inspector General Office of Counsel to the Inspector General Office of Inspector General United States Department of Health and Human Services
17
--------------
THE STATE OF CALIFORNIA
l 3o)l~ BY __L_~_J_y~----DATED I
B~ V FRANKEL Supervising Deputy Attorney General State of California
DATED---____ BY ___________________________
LORA FOX MARTIN Deputy Attorney General State of California
BY ___________________________DATED_____ TOBY BOUGLAS
Director Department ofHealth Care Services
SCANHEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP B DEFENDANTS
BY ____________________________DATED____ ______ of SCAN Health Plan
DATED____ BY of Senior Care Action Network
----~
BY _______________________ middot DATED-middotmiddot_____ ________ of SCAN Group
18
------
THE STATE OF CALIFORNIA
BY ____________________________DATED_____ BRIAN V FRANKEL Supervising Deputy Attorney General State of California
DATED 1fetz_ ~I B~~~
LO FOX MARTIN Deputy Attorney General State of California
BY _________________________DATED_____ TOBY DOUGLAS
Director Department of Health Care Services
SCANHEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP B DEFENDANTS
DATED____ BY ______________~---------------- of SCAN Health Plan
BYDATEDmiddot--- shy --------~-----of Senior Care Action Network
BY _________________________DATED---_____ _______ of SCAN Group
18
middot THE STATEOF CALIFORNIA
DATED_------- BY _____~-----~------------BRIAN V FRANKEL Supervising DeputY Attorney General State of California
DATED______ BY __~----~-----------------LORA FOX MARTIN Deputy Attorney General State of California
lt)iy middot~~ gt c
~~DOUGLAS 7) middot Director
Department ofHealth Care Services
SCAN HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP DEFENDANTS
BY ________________________~DATED____
--~--- of SCAN Health Plan
DATED____ BY __________~----------of Senior Care Action Network middot------
DATED_____ BY _______________________ _ _______ of scAN Groupmiddot
18
THE STATE OF CALIFORNIA
DATED_____ BY ____________________________
BRIANV FRANKEL Supervising Deputy Attorney General State of California
DATED_____ BY ____________________________
LORA FOX MARTIN Deputy Attorney General State of California
BY ___________________________DATED_____
TOBY DOUGLAS Director Department of Health Care Services
SCAN HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP DEFENDANTS
BY _______lC-----~-----r--~~----------~~ealthPian
BY
BY
18
DATED dz
R GER S GOLDMAN Latham amp Watkins counsel for SCAN Health Plan Senior Care Action Network ann Scan Group
JAM~S Mmiddot S)YQBEN -RELATOR
DATED____ BY ____~--~----~~--- JAMES M SWOSEN
Approved as to form and contellt
DATED_~~__ BY -------=~----------WILLIAM HANAGAMI
The Hanagami Law Firm A Professional Corporation Counsel fDr James M Swoben
19
DATED____ BY _______________ DAVID J SCHINDLER Latham amp Watk1ns Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
DATED_____ BY _______________________
ROGERS GOLDMAN Latham amp Watkins Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
JAMES M SWOBEN- RELATOR
DATED9-() to1---BYbull ~~ JAMES M SWOBEN
(
Approved as to form and content
L ~ ~middotmiddotmiddot- BY middott I amp -middot-- - ____ DATED 1 5t I C ( vbull 7 1bull lr-~A7AGAJ11 The Hanagami Law Firm A Professional Corporation Counsel for James M Swoben
DATED______ BY ABRAM J ZINBERG Counsel for James M Swoben
19
Exhibit 1
20
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 90012 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel [UNDER SEAL] ) NOTICE OF [SEALED] AND
) [PROPOSED]ORDERTHEREON Plaintiffs )
) [LODGED UNDER SEAL v ) pursuant to the False Claim Act
) 31 USC sect 3730(b)(2) and (3)] [UNDER SEAL] )
) [CAPTION ALSO MAY DESIGNATE (Caption continued on next page) ) OTHER DOCUMENTS FILED OR
) LODGED CONCURRENTLY]
21
Defendants )
22
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 900 12 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel ) JAMES M SWOBEN ) NOTICE OF DISMISSAL OF ALL
Plaintiffs ) CLAIMS AGAINST DEFENDANTS v ) SCAN HEALTH PLAN SENIOR
SCAN HEALTH PLAN a California ) CARE ACTION NETWORK AND corporation fka SENIOR CARE ) SCAN GROUP PURSUANT TO ACTION NETWORK SENIOR CARE ) SETTLEMENT AGREEMENT ACTION NETWORK a business entity) CONSENTS OF THE UNITED (Caption continued on next page) ) STATES AND STATE OF form unknown SCAN GROUP a ) CALIFORNIA ATTORNEYS
23
California corporation [NAMES OF ) GENERAL THERETO AND REMAINING DEFENDANTS ) [PROPOSED]ORDERTHEREON SEALED] )
Defendants ) [LODGED UNDER SEAL ) pursuant to the False Claim Act
31 USC sect 3730(b)(2) and (3)]
[CAPTION ALSO MAY DESIGNATE OTHER DOCUMENTS FILED OR LODGED CONCURRENTLY]
Pursuant to Rule 4l(a) of the Federal Rules of Civil Procedure and subject to
and in order to effectuate the settlement agreement among
the Relator James M Swoben (Relator) Defendants SCAN Health Plan
Senior Care Action Network and SCAN Group (collectively the SCAN
Defendants) and the United States of America and the State of California
(collectively the Governments)
the Relator hereby upon the Order of the Court herein
Dismisses all claims for relief and causes of action filed in the above-
captioned action against Defendants SCAN HEALTH PLAN SENIOR CARE
ACTION NETWORK and SCAN GROUP said dismissal being (a) with
prejudice as to the Relator (b) without prejudice to the United States of America as
to the Ninth Claim for Relief of the Third Amended Complaint and (c) with
prejudice to the Governments as to all other claims for relief and causes of action in
all Complaints filed in the above-captioned action against Defendants SCAN
HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP to
the extent that those claims for relief and causes of action are or purport to be filed
pursuant to the False Claims Act 31 USC sect 3729 et seq and the California False
Claims Act California Government Codesect 12650 et seq
Except that the Relator does not dismiss the Relators claim for a relators
share to be paid by the Governments pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(2) As to this claim the Relator
respectfully requests that the Court retain jurisdiction to determine if necessary the
relators share that the Relator should obtain pursuant to 31 USC sect 3730( d)(l) and
California Government Codesect 12652(g)(2) and
Except that the Relator does not dismiss the Relators claim for payment by
any and all of the SCAN Defendants to the Relator of expenses fees and costs
pursuant to 31 USC sect 3730(d)(l) and California Government Code
sect 12652(g)(8) As to this claim the Relator respectfully requests that the Court
retain jurisdiction to determine if necessary the appropriate expenses fees and
25
costs that the Relator should obtain pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(8)
Respectfully submitted
DATED _____ 2012 WILLIAM HANAGAMI ESQ The Hanagami Law Firm
ABRAM J ZINBERG ESQ Attorney at Law
WILLIAM HANAGAMI ESQ Attorneys for Relator JAMES M SWOBEN
26
CONSENT OF THE ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA
Pursuant to 31 USC sect 3730(b )(1) the Attorney General of the United
States of America by and through the undersigned consents to the foregoing
dismissal The reason for the consent of the Attorney General is that the dismissal
is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED _____ 2012 ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section
JOHN E LEE Assistant United States Attorney
Attorneys for the UNITED STATES OF AMERICA
CONSENT OF THE ATTORNEY GENERAL
OF THE STATE OF CALIFORNIA
Pursuant to California Government Codesect 12652(c)(1) the Attorney
General of the State of California by and through the undersigned consents to the
foregoing dismissal The reason for the consent of the Attorney General is that the
dismissal is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED 2012 ---- shy KAMALA D HARRIS Attorney General of California BRIAN V FRANKEL Supervising Deputy Attorney General
LORA FOX MARTIN Deputy Attorney General
Attorneys for the STATE OF CALIFORNIA
IT IS SO ORDERED
This ____ day of _____ 2012
UNITED STATES DISTRICT JUDGE
28
suspected or unsuspected in law or in equity including those for attorneys fees and costs arising
prior to the Effective Date ofthis Agreement and not covered by 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(8)
8 Release of the Governments by the SCAN Parties The SCAN Parties fully and
finally release the Governments and their respective agencies officers agents employees and
servants from any claims (including attorneys fees costs and expenses of every kind and
however denominated) that the SCAN Parties have asserted could have asserted or may assert in
the future against the Governments and their respective agencies officers agents employees
and servants related to or arising out of the Covered Conduct the Civil Action the
Governments investigation of the Covered Conduct and the Civil Action and any ensuing civil
prosecution
9 This Agreement is Fair Adequate and Reasonable Relator and his heirs
successors attorneys agents and assigns do not and shall not object to this Agreement and
instead agree and confirm that this Agreement and the settlement effectuated herein are fair
adequate and reasonable under all ofthe circumstances pursuant to 31 USC sect 3730(c)(2)(B)
and California Government Codesect 12652(e)(2)(B) The Governments and Relator and his heirs
successors attorneys agents and assigns agree that they each retain all of their rights on the
issue of the share percentage if any that Relator should receive of any proceeds of the settlement
of his claims and that no agreements concerning any Relator share have been reached to date
The Governments and Relator and his heirs successors attorneys agents and assigns agree that
neither this Agreement nor any part of it nor any intervention by the United States andor
California in the Civil Action in order to dismiss the Civil Action or for any other purpose nor
10
any dismissal of the Civil Action nor any other circumstance (1) shall waive or otherwise affect
the ability of the Governments to contend that Relator is barred from sharing in any or all of the
proceeds of this Agreement or to contend that some or all of the Covered Conduct alleged in the
Recitals paragraph C of this Agreement is not alleged in Relators Complaints in the Civil
Action or (2) shall waive or otherwise affect Relators ability to contend that he should share in
any or all of the proceeds of this Agreement or to contend that some or all of the Covered
Conduct alleged in the Recitals paragraph C of this Agreement is alleged in Relators
Complaints in the Civil Action
10 Double Jeopardy and Excessive Fines Clauses The SCAN Parties waive and
shall not assert any defenses they may have to any criminal prosecution or administrative action
relating to the Covered Conduct that may be based in whole or in part on a contention that under
the Double Jeopardy Clause in the Fifth Amendment ofthe United States Constitution the
Excessive Fines Clause in the Eighth Amendment of the United States Constitution or under
Article 1 sections 15 and 24 of the California Constitution this Agreement bars a remedy sought
in such criminal prosecution or administrative action
11 No Characterization of Settlement Amount for the Purpose of Internal Revenue
Laws Nothing in the preceding Paragraph or in any provision of this Agreement constitutes an
agreement by the United States concerning the characterization of the Settlement Amount for
purposes ofthe Internal Revenue laws Title 26 of the United States Code
12 Denial of Claims The Settlement Amount shall not be decreased as a result of
the denial of claims for payment now being withheld from payment by any Medicare carrier or
intermediary or any state payer related to the Covered Conduct and the SCAN Parties agree not
11
to resubmit to any Medicare carrier or intermediary or any state payer any previously denied
claims related to the Covered Conduct and agree not to appeal any such denials of claims
13 Unallowable Costs The SCAN Parties agree to the following
a Unallowable Costs Defined All costs (as defined in the Federal
Acquisition Regulation 48 CFR sect 31205-47 and in Titles XVIII and XIX ofthe Social
Security Act 42 USC sectsect 1395-1395kkk-1 and 1396-1396w-5 and the regulations and official
program directives promulgated thereunder) incurred by or on behalf of the SCAN Parties andor
by their respective present or former officers directors employees shareholders and agents in
connection with
(1) the matters covered by this Agreement
(2) the Governments audit(s) and civil and any criminal
investigation(s) of any of the matters covered by this Agreement
(3) the SCAN Parties investigation defense and corrective actions
undertaken in response to the Governments audit(s) and civil and any
criminal investigation(s) in connection with the matters covered by this
Agreement (including attorneys fees)
(4) the negotiation and performance of this Agreement and
(5) the payment SCAN makes to the Governments pursuant to this
Agreement and any payments that the SCAN Parties may make to Relator
including costs and attorneys fees
are unallowable costs for government contracting purposes and under the Medicare Program
Medicaid Program TRICARE Program and Federal Employees Health Benefits Program
12
(FEHBP) or any other federal or state program (hereinafter referred to as Unallowable Costs)
b Future Treatment of Unallowable Costs Unallowable Costs shall be
separately determined and accounted for in nonreimbursable cost centers by the SCAN Parties
and the SCAN Parties shall not charge such Unallowable Costs directly or indirectly to any
contracts with the United States California or any state Medicaid program or seek payment for
such Unallowable Costs through any cost report cost statement information statement or
payment request submitted by the SCAN Parties or any of their respective subsidiaries or
affiliates to the Medicare Medicaid TRICARE or FEHBP Programs or to any other federal or
state program
c Treatment of Unallowable Costs Previously Submitted for Payment The
SCAN Parties further agree that within 90 days of the Effective Date of this Agreement they shall
identify to applicable Medicare and TRICARE fiscal intermediaries carriers andor contractors
and Medicaid and FEHBP fiscal agents any Unallowable Costs included in payments previously
sought from the United States California or any state Medicaid program including but not
limited to payments sought in any cost reports cost statements information reports or payment
requests already submitted by the SCAN Parties or any of their respective subsidiaries or
affiliates and shall request and agree that such cost reports cost statements information
reports or payment requests even if already settled be adjusted to account for the effect of the
inclusion of the unallowable costs The SCAN Parties agree that the Governments at a
minimum shall be entitled to recoup from them any overpayment plus applicable interest and
penalties as a result of the inclusion of such Unallowable Costs on previously-submitted cost
reports information reports cost statements or requests for payment
13
Any payments due after the adjustments have been made shall be paid to the
Governments pursuant to the direction of the United States Department of Justice andor the
affected agencies The Governments reserve their rights to disagree with any calculations
submitted by the SCAN Parties or any of their respective subsidiaries or affiliates on the effect of
inclusion of Unallowable Costs (as defined in this Paragraph) on the SCAN Parties or any of
their respective subsidiaries or affiliates cost reports cost statements or information reports
d Nothing in this Agreement shall constitute a waiver of the rights of the
Governments to audit examine or re-examine the SCAN Parties books and records to determine
that no Unallowable Costs have been claimed in accordance with the provisions of this
Paragraph
14 Benefit of the Parties This Agreement is intended to be for the benefit ofthe
Parties only The Parties do not release any claims against any other person or entity except to
the extent provided for in the Paragraph immediately below (waiver for beneficiaries Paragraph)
15 Waiver for Health Care Beneficiaries The SCAN Parties agree that they waive
and shall not seek payment for any of the health care billings covered by this Agreement from
any health care beneficiaries or their parents sponsors legally responsible individuals or third
party payors based upon the claims defined as Covered Conduct
16 Financial Condition SCAN warrants that it has reviewed its financial situation
and that it currently is solvent within the meaning of 11 USC sectsect 547(b)(3) and
548(a)(l)(B)(ii)(I) and shall remain solvent following payment to the Governments ofthe
Settlement Amount Further the Parties warrant that in evaluating whether to execute this
Agreement they (a) have intended that the mutual promises covenants and obligations set forth
14
constitute a contemporaneous exchange for new value given to SCAN within the meaning of 11
USC sect 547(c)(1) and (b) conclude that these mutual promises covenants and obligations do
in fact constitute such a contemporaneous exchange Further the Parties warrant that the mutual
promises covenants and obligations set forth herein are intended to and do in fact represent a
reasonably equivalent exchange of value that is not intended to hinder delay or defraud any
entity to which SCAN was or became indebted to on or after the date of this transfer within the
meaning of 11 USC sect 548(a)(l)
17 Costs With the exception ofRelators expenses attorneys fees and costs if any
under 31 USC sect 3730(d)(1) and California Government Codesect 12652(g)(8) each Party shall
bear its and his own legal and other costs fees and expenses incurred in connection with this
matter including the preparation and performance of this Agreement
18 Governing Law This Agreement is governed by the laws of the United States
The exclusive jurisdiction and venue for any dispute relating to this Agreement is the United
States District Court for the Central District of California
19 Voluntary Agreement Each Party represents that it and he freely voluntarily
knowingly and deliberately enters into this Agreement without any degree of duress
compulsion or misconduct by any of the Parties
20 No Representations Outside this Agreement Each of the Parties acknowledges
that except as expressly set forth in this Agreement no representations of any kind or character
have been made by any other party or that partys ~gents representatives or attorneys to induce
execution or delivery of this Agreement
21 Agreement Drafted by All Parties This Agreement shall be deemed to have been
15
drafted by all Parties to this Agreement and therefore shall not be construed against any Party for
reasons of drafting
22 Complete Agreement This Agreement constitutes the entire agreement of the
Parties with respect to the subject matter of this Agreement and may not be modified amended
or terminated except by a written agreement signed by the Parties specifically referring to this
Agreement and its relevant portions
23 The SCAN Parties Successors etc This Agreement is binding on the SCAN
Parties respective successors transferees and assigns
24 Relators Successors etc This Agreement is binding on Relators successors
transferees heirs and assigns
25 Disclosure All Parties consent to the Governments disclosure of this Agreement
and information about this Agreement to the public
26 Headings The headings in this Agreement are for convenience only do not
constitute a part of this Agreement and shall not limit or affect any of its provisions
27 Capacity to Execute The undersigned counsel represent and warrant that they are
fully authorized to execute this Agreement on behalf of the persons and entities indicated below
The Relator represents that he has the full power authority and competence necessary to enter
into this Agreement
28 Counterparts and Facsimiles This Agreement may be executed in counterparts
each of which constitutes an original and all of which constitute one and the same Agreement
Facsimiles of signatures shall constitute acceptable binding signatures for purposes of this
Agreement
16
29 Effective Date This Agreement is effective on the date of signature of the last
signatory to the Agreement (Effective Date of this Agreement)
In Witness Whereof the Parties through their duly authorized representatives hereunder
set their hands
THE UNITED STATES OF AMERICA
DATED WQ_Qf)_
DATED ~Itk)2shy
DATED_____
Assistant United States Attorney Central District of California
JOHN E LEE Assistant United States Attorney Central District of California
BY __________________
GREGORY E DEMSKE Chief Counsel to the Inspector General Office of Counsel to the Inspector General Office of Inspector General United States Department of Health and Human Services
17
29 Effective Date This Agreement is effective on the date of signature of the last
signatory to the Agreement (Effective Date ofthis Agreement)
In Witness Whereof the Parties through their duly authorized representatives hereunder
set their hands
DATED_____
DATED_____
DATED~
THE UNITED STAT_ES OF AMERlCA
BY ___________________ SUSAN R HERSHMAN Assistant United States Attorney Central District of California
BY -------------------------shyJOHNELEE Assistant United States Attorney
Central District of~
BY __~~~==---~--------------------------GREGORY E DEMSKE Chief Counsel to the Inspector General Office of Counsel to the Inspector General Office of Inspector General United States Department of Health and Human Services
17
--------------
THE STATE OF CALIFORNIA
l 3o)l~ BY __L_~_J_y~----DATED I
B~ V FRANKEL Supervising Deputy Attorney General State of California
DATED---____ BY ___________________________
LORA FOX MARTIN Deputy Attorney General State of California
BY ___________________________DATED_____ TOBY BOUGLAS
Director Department ofHealth Care Services
SCANHEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP B DEFENDANTS
BY ____________________________DATED____ ______ of SCAN Health Plan
DATED____ BY of Senior Care Action Network
----~
BY _______________________ middot DATED-middotmiddot_____ ________ of SCAN Group
18
------
THE STATE OF CALIFORNIA
BY ____________________________DATED_____ BRIAN V FRANKEL Supervising Deputy Attorney General State of California
DATED 1fetz_ ~I B~~~
LO FOX MARTIN Deputy Attorney General State of California
BY _________________________DATED_____ TOBY DOUGLAS
Director Department of Health Care Services
SCANHEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP B DEFENDANTS
DATED____ BY ______________~---------------- of SCAN Health Plan
BYDATEDmiddot--- shy --------~-----of Senior Care Action Network
BY _________________________DATED---_____ _______ of SCAN Group
18
middot THE STATEOF CALIFORNIA
DATED_------- BY _____~-----~------------BRIAN V FRANKEL Supervising DeputY Attorney General State of California
DATED______ BY __~----~-----------------LORA FOX MARTIN Deputy Attorney General State of California
lt)iy middot~~ gt c
~~DOUGLAS 7) middot Director
Department ofHealth Care Services
SCAN HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP DEFENDANTS
BY ________________________~DATED____
--~--- of SCAN Health Plan
DATED____ BY __________~----------of Senior Care Action Network middot------
DATED_____ BY _______________________ _ _______ of scAN Groupmiddot
18
THE STATE OF CALIFORNIA
DATED_____ BY ____________________________
BRIANV FRANKEL Supervising Deputy Attorney General State of California
DATED_____ BY ____________________________
LORA FOX MARTIN Deputy Attorney General State of California
BY ___________________________DATED_____
TOBY DOUGLAS Director Department of Health Care Services
SCAN HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP DEFENDANTS
BY _______lC-----~-----r--~~----------~~ealthPian
BY
BY
18
DATED dz
R GER S GOLDMAN Latham amp Watkins counsel for SCAN Health Plan Senior Care Action Network ann Scan Group
JAM~S Mmiddot S)YQBEN -RELATOR
DATED____ BY ____~--~----~~--- JAMES M SWOSEN
Approved as to form and contellt
DATED_~~__ BY -------=~----------WILLIAM HANAGAMI
The Hanagami Law Firm A Professional Corporation Counsel fDr James M Swoben
19
DATED____ BY _______________ DAVID J SCHINDLER Latham amp Watk1ns Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
DATED_____ BY _______________________
ROGERS GOLDMAN Latham amp Watkins Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
JAMES M SWOBEN- RELATOR
DATED9-() to1---BYbull ~~ JAMES M SWOBEN
(
Approved as to form and content
L ~ ~middotmiddotmiddot- BY middott I amp -middot-- - ____ DATED 1 5t I C ( vbull 7 1bull lr-~A7AGAJ11 The Hanagami Law Firm A Professional Corporation Counsel for James M Swoben
DATED______ BY ABRAM J ZINBERG Counsel for James M Swoben
19
Exhibit 1
20
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 90012 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel [UNDER SEAL] ) NOTICE OF [SEALED] AND
) [PROPOSED]ORDERTHEREON Plaintiffs )
) [LODGED UNDER SEAL v ) pursuant to the False Claim Act
) 31 USC sect 3730(b)(2) and (3)] [UNDER SEAL] )
) [CAPTION ALSO MAY DESIGNATE (Caption continued on next page) ) OTHER DOCUMENTS FILED OR
) LODGED CONCURRENTLY]
21
Defendants )
22
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 900 12 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel ) JAMES M SWOBEN ) NOTICE OF DISMISSAL OF ALL
Plaintiffs ) CLAIMS AGAINST DEFENDANTS v ) SCAN HEALTH PLAN SENIOR
SCAN HEALTH PLAN a California ) CARE ACTION NETWORK AND corporation fka SENIOR CARE ) SCAN GROUP PURSUANT TO ACTION NETWORK SENIOR CARE ) SETTLEMENT AGREEMENT ACTION NETWORK a business entity) CONSENTS OF THE UNITED (Caption continued on next page) ) STATES AND STATE OF form unknown SCAN GROUP a ) CALIFORNIA ATTORNEYS
23
California corporation [NAMES OF ) GENERAL THERETO AND REMAINING DEFENDANTS ) [PROPOSED]ORDERTHEREON SEALED] )
Defendants ) [LODGED UNDER SEAL ) pursuant to the False Claim Act
31 USC sect 3730(b)(2) and (3)]
[CAPTION ALSO MAY DESIGNATE OTHER DOCUMENTS FILED OR LODGED CONCURRENTLY]
Pursuant to Rule 4l(a) of the Federal Rules of Civil Procedure and subject to
and in order to effectuate the settlement agreement among
the Relator James M Swoben (Relator) Defendants SCAN Health Plan
Senior Care Action Network and SCAN Group (collectively the SCAN
Defendants) and the United States of America and the State of California
(collectively the Governments)
the Relator hereby upon the Order of the Court herein
Dismisses all claims for relief and causes of action filed in the above-
captioned action against Defendants SCAN HEALTH PLAN SENIOR CARE
ACTION NETWORK and SCAN GROUP said dismissal being (a) with
prejudice as to the Relator (b) without prejudice to the United States of America as
to the Ninth Claim for Relief of the Third Amended Complaint and (c) with
prejudice to the Governments as to all other claims for relief and causes of action in
all Complaints filed in the above-captioned action against Defendants SCAN
HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP to
the extent that those claims for relief and causes of action are or purport to be filed
pursuant to the False Claims Act 31 USC sect 3729 et seq and the California False
Claims Act California Government Codesect 12650 et seq
Except that the Relator does not dismiss the Relators claim for a relators
share to be paid by the Governments pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(2) As to this claim the Relator
respectfully requests that the Court retain jurisdiction to determine if necessary the
relators share that the Relator should obtain pursuant to 31 USC sect 3730( d)(l) and
California Government Codesect 12652(g)(2) and
Except that the Relator does not dismiss the Relators claim for payment by
any and all of the SCAN Defendants to the Relator of expenses fees and costs
pursuant to 31 USC sect 3730(d)(l) and California Government Code
sect 12652(g)(8) As to this claim the Relator respectfully requests that the Court
retain jurisdiction to determine if necessary the appropriate expenses fees and
25
costs that the Relator should obtain pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(8)
Respectfully submitted
DATED _____ 2012 WILLIAM HANAGAMI ESQ The Hanagami Law Firm
ABRAM J ZINBERG ESQ Attorney at Law
WILLIAM HANAGAMI ESQ Attorneys for Relator JAMES M SWOBEN
26
CONSENT OF THE ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA
Pursuant to 31 USC sect 3730(b )(1) the Attorney General of the United
States of America by and through the undersigned consents to the foregoing
dismissal The reason for the consent of the Attorney General is that the dismissal
is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED _____ 2012 ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section
JOHN E LEE Assistant United States Attorney
Attorneys for the UNITED STATES OF AMERICA
CONSENT OF THE ATTORNEY GENERAL
OF THE STATE OF CALIFORNIA
Pursuant to California Government Codesect 12652(c)(1) the Attorney
General of the State of California by and through the undersigned consents to the
foregoing dismissal The reason for the consent of the Attorney General is that the
dismissal is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED 2012 ---- shy KAMALA D HARRIS Attorney General of California BRIAN V FRANKEL Supervising Deputy Attorney General
LORA FOX MARTIN Deputy Attorney General
Attorneys for the STATE OF CALIFORNIA
IT IS SO ORDERED
This ____ day of _____ 2012
UNITED STATES DISTRICT JUDGE
28
any dismissal of the Civil Action nor any other circumstance (1) shall waive or otherwise affect
the ability of the Governments to contend that Relator is barred from sharing in any or all of the
proceeds of this Agreement or to contend that some or all of the Covered Conduct alleged in the
Recitals paragraph C of this Agreement is not alleged in Relators Complaints in the Civil
Action or (2) shall waive or otherwise affect Relators ability to contend that he should share in
any or all of the proceeds of this Agreement or to contend that some or all of the Covered
Conduct alleged in the Recitals paragraph C of this Agreement is alleged in Relators
Complaints in the Civil Action
10 Double Jeopardy and Excessive Fines Clauses The SCAN Parties waive and
shall not assert any defenses they may have to any criminal prosecution or administrative action
relating to the Covered Conduct that may be based in whole or in part on a contention that under
the Double Jeopardy Clause in the Fifth Amendment ofthe United States Constitution the
Excessive Fines Clause in the Eighth Amendment of the United States Constitution or under
Article 1 sections 15 and 24 of the California Constitution this Agreement bars a remedy sought
in such criminal prosecution or administrative action
11 No Characterization of Settlement Amount for the Purpose of Internal Revenue
Laws Nothing in the preceding Paragraph or in any provision of this Agreement constitutes an
agreement by the United States concerning the characterization of the Settlement Amount for
purposes ofthe Internal Revenue laws Title 26 of the United States Code
12 Denial of Claims The Settlement Amount shall not be decreased as a result of
the denial of claims for payment now being withheld from payment by any Medicare carrier or
intermediary or any state payer related to the Covered Conduct and the SCAN Parties agree not
11
to resubmit to any Medicare carrier or intermediary or any state payer any previously denied
claims related to the Covered Conduct and agree not to appeal any such denials of claims
13 Unallowable Costs The SCAN Parties agree to the following
a Unallowable Costs Defined All costs (as defined in the Federal
Acquisition Regulation 48 CFR sect 31205-47 and in Titles XVIII and XIX ofthe Social
Security Act 42 USC sectsect 1395-1395kkk-1 and 1396-1396w-5 and the regulations and official
program directives promulgated thereunder) incurred by or on behalf of the SCAN Parties andor
by their respective present or former officers directors employees shareholders and agents in
connection with
(1) the matters covered by this Agreement
(2) the Governments audit(s) and civil and any criminal
investigation(s) of any of the matters covered by this Agreement
(3) the SCAN Parties investigation defense and corrective actions
undertaken in response to the Governments audit(s) and civil and any
criminal investigation(s) in connection with the matters covered by this
Agreement (including attorneys fees)
(4) the negotiation and performance of this Agreement and
(5) the payment SCAN makes to the Governments pursuant to this
Agreement and any payments that the SCAN Parties may make to Relator
including costs and attorneys fees
are unallowable costs for government contracting purposes and under the Medicare Program
Medicaid Program TRICARE Program and Federal Employees Health Benefits Program
12
(FEHBP) or any other federal or state program (hereinafter referred to as Unallowable Costs)
b Future Treatment of Unallowable Costs Unallowable Costs shall be
separately determined and accounted for in nonreimbursable cost centers by the SCAN Parties
and the SCAN Parties shall not charge such Unallowable Costs directly or indirectly to any
contracts with the United States California or any state Medicaid program or seek payment for
such Unallowable Costs through any cost report cost statement information statement or
payment request submitted by the SCAN Parties or any of their respective subsidiaries or
affiliates to the Medicare Medicaid TRICARE or FEHBP Programs or to any other federal or
state program
c Treatment of Unallowable Costs Previously Submitted for Payment The
SCAN Parties further agree that within 90 days of the Effective Date of this Agreement they shall
identify to applicable Medicare and TRICARE fiscal intermediaries carriers andor contractors
and Medicaid and FEHBP fiscal agents any Unallowable Costs included in payments previously
sought from the United States California or any state Medicaid program including but not
limited to payments sought in any cost reports cost statements information reports or payment
requests already submitted by the SCAN Parties or any of their respective subsidiaries or
affiliates and shall request and agree that such cost reports cost statements information
reports or payment requests even if already settled be adjusted to account for the effect of the
inclusion of the unallowable costs The SCAN Parties agree that the Governments at a
minimum shall be entitled to recoup from them any overpayment plus applicable interest and
penalties as a result of the inclusion of such Unallowable Costs on previously-submitted cost
reports information reports cost statements or requests for payment
13
Any payments due after the adjustments have been made shall be paid to the
Governments pursuant to the direction of the United States Department of Justice andor the
affected agencies The Governments reserve their rights to disagree with any calculations
submitted by the SCAN Parties or any of their respective subsidiaries or affiliates on the effect of
inclusion of Unallowable Costs (as defined in this Paragraph) on the SCAN Parties or any of
their respective subsidiaries or affiliates cost reports cost statements or information reports
d Nothing in this Agreement shall constitute a waiver of the rights of the
Governments to audit examine or re-examine the SCAN Parties books and records to determine
that no Unallowable Costs have been claimed in accordance with the provisions of this
Paragraph
14 Benefit of the Parties This Agreement is intended to be for the benefit ofthe
Parties only The Parties do not release any claims against any other person or entity except to
the extent provided for in the Paragraph immediately below (waiver for beneficiaries Paragraph)
15 Waiver for Health Care Beneficiaries The SCAN Parties agree that they waive
and shall not seek payment for any of the health care billings covered by this Agreement from
any health care beneficiaries or their parents sponsors legally responsible individuals or third
party payors based upon the claims defined as Covered Conduct
16 Financial Condition SCAN warrants that it has reviewed its financial situation
and that it currently is solvent within the meaning of 11 USC sectsect 547(b)(3) and
548(a)(l)(B)(ii)(I) and shall remain solvent following payment to the Governments ofthe
Settlement Amount Further the Parties warrant that in evaluating whether to execute this
Agreement they (a) have intended that the mutual promises covenants and obligations set forth
14
constitute a contemporaneous exchange for new value given to SCAN within the meaning of 11
USC sect 547(c)(1) and (b) conclude that these mutual promises covenants and obligations do
in fact constitute such a contemporaneous exchange Further the Parties warrant that the mutual
promises covenants and obligations set forth herein are intended to and do in fact represent a
reasonably equivalent exchange of value that is not intended to hinder delay or defraud any
entity to which SCAN was or became indebted to on or after the date of this transfer within the
meaning of 11 USC sect 548(a)(l)
17 Costs With the exception ofRelators expenses attorneys fees and costs if any
under 31 USC sect 3730(d)(1) and California Government Codesect 12652(g)(8) each Party shall
bear its and his own legal and other costs fees and expenses incurred in connection with this
matter including the preparation and performance of this Agreement
18 Governing Law This Agreement is governed by the laws of the United States
The exclusive jurisdiction and venue for any dispute relating to this Agreement is the United
States District Court for the Central District of California
19 Voluntary Agreement Each Party represents that it and he freely voluntarily
knowingly and deliberately enters into this Agreement without any degree of duress
compulsion or misconduct by any of the Parties
20 No Representations Outside this Agreement Each of the Parties acknowledges
that except as expressly set forth in this Agreement no representations of any kind or character
have been made by any other party or that partys ~gents representatives or attorneys to induce
execution or delivery of this Agreement
21 Agreement Drafted by All Parties This Agreement shall be deemed to have been
15
drafted by all Parties to this Agreement and therefore shall not be construed against any Party for
reasons of drafting
22 Complete Agreement This Agreement constitutes the entire agreement of the
Parties with respect to the subject matter of this Agreement and may not be modified amended
or terminated except by a written agreement signed by the Parties specifically referring to this
Agreement and its relevant portions
23 The SCAN Parties Successors etc This Agreement is binding on the SCAN
Parties respective successors transferees and assigns
24 Relators Successors etc This Agreement is binding on Relators successors
transferees heirs and assigns
25 Disclosure All Parties consent to the Governments disclosure of this Agreement
and information about this Agreement to the public
26 Headings The headings in this Agreement are for convenience only do not
constitute a part of this Agreement and shall not limit or affect any of its provisions
27 Capacity to Execute The undersigned counsel represent and warrant that they are
fully authorized to execute this Agreement on behalf of the persons and entities indicated below
The Relator represents that he has the full power authority and competence necessary to enter
into this Agreement
28 Counterparts and Facsimiles This Agreement may be executed in counterparts
each of which constitutes an original and all of which constitute one and the same Agreement
Facsimiles of signatures shall constitute acceptable binding signatures for purposes of this
Agreement
16
29 Effective Date This Agreement is effective on the date of signature of the last
signatory to the Agreement (Effective Date of this Agreement)
In Witness Whereof the Parties through their duly authorized representatives hereunder
set their hands
THE UNITED STATES OF AMERICA
DATED WQ_Qf)_
DATED ~Itk)2shy
DATED_____
Assistant United States Attorney Central District of California
JOHN E LEE Assistant United States Attorney Central District of California
BY __________________
GREGORY E DEMSKE Chief Counsel to the Inspector General Office of Counsel to the Inspector General Office of Inspector General United States Department of Health and Human Services
17
29 Effective Date This Agreement is effective on the date of signature of the last
signatory to the Agreement (Effective Date ofthis Agreement)
In Witness Whereof the Parties through their duly authorized representatives hereunder
set their hands
DATED_____
DATED_____
DATED~
THE UNITED STAT_ES OF AMERlCA
BY ___________________ SUSAN R HERSHMAN Assistant United States Attorney Central District of California
BY -------------------------shyJOHNELEE Assistant United States Attorney
Central District of~
BY __~~~==---~--------------------------GREGORY E DEMSKE Chief Counsel to the Inspector General Office of Counsel to the Inspector General Office of Inspector General United States Department of Health and Human Services
17
--------------
THE STATE OF CALIFORNIA
l 3o)l~ BY __L_~_J_y~----DATED I
B~ V FRANKEL Supervising Deputy Attorney General State of California
DATED---____ BY ___________________________
LORA FOX MARTIN Deputy Attorney General State of California
BY ___________________________DATED_____ TOBY BOUGLAS
Director Department ofHealth Care Services
SCANHEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP B DEFENDANTS
BY ____________________________DATED____ ______ of SCAN Health Plan
DATED____ BY of Senior Care Action Network
----~
BY _______________________ middot DATED-middotmiddot_____ ________ of SCAN Group
18
------
THE STATE OF CALIFORNIA
BY ____________________________DATED_____ BRIAN V FRANKEL Supervising Deputy Attorney General State of California
DATED 1fetz_ ~I B~~~
LO FOX MARTIN Deputy Attorney General State of California
BY _________________________DATED_____ TOBY DOUGLAS
Director Department of Health Care Services
SCANHEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP B DEFENDANTS
DATED____ BY ______________~---------------- of SCAN Health Plan
BYDATEDmiddot--- shy --------~-----of Senior Care Action Network
BY _________________________DATED---_____ _______ of SCAN Group
18
middot THE STATEOF CALIFORNIA
DATED_------- BY _____~-----~------------BRIAN V FRANKEL Supervising DeputY Attorney General State of California
DATED______ BY __~----~-----------------LORA FOX MARTIN Deputy Attorney General State of California
lt)iy middot~~ gt c
~~DOUGLAS 7) middot Director
Department ofHealth Care Services
SCAN HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP DEFENDANTS
BY ________________________~DATED____
--~--- of SCAN Health Plan
DATED____ BY __________~----------of Senior Care Action Network middot------
DATED_____ BY _______________________ _ _______ of scAN Groupmiddot
18
THE STATE OF CALIFORNIA
DATED_____ BY ____________________________
BRIANV FRANKEL Supervising Deputy Attorney General State of California
DATED_____ BY ____________________________
LORA FOX MARTIN Deputy Attorney General State of California
BY ___________________________DATED_____
TOBY DOUGLAS Director Department of Health Care Services
SCAN HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP DEFENDANTS
BY _______lC-----~-----r--~~----------~~ealthPian
BY
BY
18
DATED dz
R GER S GOLDMAN Latham amp Watkins counsel for SCAN Health Plan Senior Care Action Network ann Scan Group
JAM~S Mmiddot S)YQBEN -RELATOR
DATED____ BY ____~--~----~~--- JAMES M SWOSEN
Approved as to form and contellt
DATED_~~__ BY -------=~----------WILLIAM HANAGAMI
The Hanagami Law Firm A Professional Corporation Counsel fDr James M Swoben
19
DATED____ BY _______________ DAVID J SCHINDLER Latham amp Watk1ns Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
DATED_____ BY _______________________
ROGERS GOLDMAN Latham amp Watkins Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
JAMES M SWOBEN- RELATOR
DATED9-() to1---BYbull ~~ JAMES M SWOBEN
(
Approved as to form and content
L ~ ~middotmiddotmiddot- BY middott I amp -middot-- - ____ DATED 1 5t I C ( vbull 7 1bull lr-~A7AGAJ11 The Hanagami Law Firm A Professional Corporation Counsel for James M Swoben
DATED______ BY ABRAM J ZINBERG Counsel for James M Swoben
19
Exhibit 1
20
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 90012 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel [UNDER SEAL] ) NOTICE OF [SEALED] AND
) [PROPOSED]ORDERTHEREON Plaintiffs )
) [LODGED UNDER SEAL v ) pursuant to the False Claim Act
) 31 USC sect 3730(b)(2) and (3)] [UNDER SEAL] )
) [CAPTION ALSO MAY DESIGNATE (Caption continued on next page) ) OTHER DOCUMENTS FILED OR
) LODGED CONCURRENTLY]
21
Defendants )
22
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 900 12 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel ) JAMES M SWOBEN ) NOTICE OF DISMISSAL OF ALL
Plaintiffs ) CLAIMS AGAINST DEFENDANTS v ) SCAN HEALTH PLAN SENIOR
SCAN HEALTH PLAN a California ) CARE ACTION NETWORK AND corporation fka SENIOR CARE ) SCAN GROUP PURSUANT TO ACTION NETWORK SENIOR CARE ) SETTLEMENT AGREEMENT ACTION NETWORK a business entity) CONSENTS OF THE UNITED (Caption continued on next page) ) STATES AND STATE OF form unknown SCAN GROUP a ) CALIFORNIA ATTORNEYS
23
California corporation [NAMES OF ) GENERAL THERETO AND REMAINING DEFENDANTS ) [PROPOSED]ORDERTHEREON SEALED] )
Defendants ) [LODGED UNDER SEAL ) pursuant to the False Claim Act
31 USC sect 3730(b)(2) and (3)]
[CAPTION ALSO MAY DESIGNATE OTHER DOCUMENTS FILED OR LODGED CONCURRENTLY]
Pursuant to Rule 4l(a) of the Federal Rules of Civil Procedure and subject to
and in order to effectuate the settlement agreement among
the Relator James M Swoben (Relator) Defendants SCAN Health Plan
Senior Care Action Network and SCAN Group (collectively the SCAN
Defendants) and the United States of America and the State of California
(collectively the Governments)
the Relator hereby upon the Order of the Court herein
Dismisses all claims for relief and causes of action filed in the above-
captioned action against Defendants SCAN HEALTH PLAN SENIOR CARE
ACTION NETWORK and SCAN GROUP said dismissal being (a) with
prejudice as to the Relator (b) without prejudice to the United States of America as
to the Ninth Claim for Relief of the Third Amended Complaint and (c) with
prejudice to the Governments as to all other claims for relief and causes of action in
all Complaints filed in the above-captioned action against Defendants SCAN
HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP to
the extent that those claims for relief and causes of action are or purport to be filed
pursuant to the False Claims Act 31 USC sect 3729 et seq and the California False
Claims Act California Government Codesect 12650 et seq
Except that the Relator does not dismiss the Relators claim for a relators
share to be paid by the Governments pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(2) As to this claim the Relator
respectfully requests that the Court retain jurisdiction to determine if necessary the
relators share that the Relator should obtain pursuant to 31 USC sect 3730( d)(l) and
California Government Codesect 12652(g)(2) and
Except that the Relator does not dismiss the Relators claim for payment by
any and all of the SCAN Defendants to the Relator of expenses fees and costs
pursuant to 31 USC sect 3730(d)(l) and California Government Code
sect 12652(g)(8) As to this claim the Relator respectfully requests that the Court
retain jurisdiction to determine if necessary the appropriate expenses fees and
25
costs that the Relator should obtain pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(8)
Respectfully submitted
DATED _____ 2012 WILLIAM HANAGAMI ESQ The Hanagami Law Firm
ABRAM J ZINBERG ESQ Attorney at Law
WILLIAM HANAGAMI ESQ Attorneys for Relator JAMES M SWOBEN
26
CONSENT OF THE ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA
Pursuant to 31 USC sect 3730(b )(1) the Attorney General of the United
States of America by and through the undersigned consents to the foregoing
dismissal The reason for the consent of the Attorney General is that the dismissal
is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED _____ 2012 ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section
JOHN E LEE Assistant United States Attorney
Attorneys for the UNITED STATES OF AMERICA
CONSENT OF THE ATTORNEY GENERAL
OF THE STATE OF CALIFORNIA
Pursuant to California Government Codesect 12652(c)(1) the Attorney
General of the State of California by and through the undersigned consents to the
foregoing dismissal The reason for the consent of the Attorney General is that the
dismissal is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED 2012 ---- shy KAMALA D HARRIS Attorney General of California BRIAN V FRANKEL Supervising Deputy Attorney General
LORA FOX MARTIN Deputy Attorney General
Attorneys for the STATE OF CALIFORNIA
IT IS SO ORDERED
This ____ day of _____ 2012
UNITED STATES DISTRICT JUDGE
28
to resubmit to any Medicare carrier or intermediary or any state payer any previously denied
claims related to the Covered Conduct and agree not to appeal any such denials of claims
13 Unallowable Costs The SCAN Parties agree to the following
a Unallowable Costs Defined All costs (as defined in the Federal
Acquisition Regulation 48 CFR sect 31205-47 and in Titles XVIII and XIX ofthe Social
Security Act 42 USC sectsect 1395-1395kkk-1 and 1396-1396w-5 and the regulations and official
program directives promulgated thereunder) incurred by or on behalf of the SCAN Parties andor
by their respective present or former officers directors employees shareholders and agents in
connection with
(1) the matters covered by this Agreement
(2) the Governments audit(s) and civil and any criminal
investigation(s) of any of the matters covered by this Agreement
(3) the SCAN Parties investigation defense and corrective actions
undertaken in response to the Governments audit(s) and civil and any
criminal investigation(s) in connection with the matters covered by this
Agreement (including attorneys fees)
(4) the negotiation and performance of this Agreement and
(5) the payment SCAN makes to the Governments pursuant to this
Agreement and any payments that the SCAN Parties may make to Relator
including costs and attorneys fees
are unallowable costs for government contracting purposes and under the Medicare Program
Medicaid Program TRICARE Program and Federal Employees Health Benefits Program
12
(FEHBP) or any other federal or state program (hereinafter referred to as Unallowable Costs)
b Future Treatment of Unallowable Costs Unallowable Costs shall be
separately determined and accounted for in nonreimbursable cost centers by the SCAN Parties
and the SCAN Parties shall not charge such Unallowable Costs directly or indirectly to any
contracts with the United States California or any state Medicaid program or seek payment for
such Unallowable Costs through any cost report cost statement information statement or
payment request submitted by the SCAN Parties or any of their respective subsidiaries or
affiliates to the Medicare Medicaid TRICARE or FEHBP Programs or to any other federal or
state program
c Treatment of Unallowable Costs Previously Submitted for Payment The
SCAN Parties further agree that within 90 days of the Effective Date of this Agreement they shall
identify to applicable Medicare and TRICARE fiscal intermediaries carriers andor contractors
and Medicaid and FEHBP fiscal agents any Unallowable Costs included in payments previously
sought from the United States California or any state Medicaid program including but not
limited to payments sought in any cost reports cost statements information reports or payment
requests already submitted by the SCAN Parties or any of their respective subsidiaries or
affiliates and shall request and agree that such cost reports cost statements information
reports or payment requests even if already settled be adjusted to account for the effect of the
inclusion of the unallowable costs The SCAN Parties agree that the Governments at a
minimum shall be entitled to recoup from them any overpayment plus applicable interest and
penalties as a result of the inclusion of such Unallowable Costs on previously-submitted cost
reports information reports cost statements or requests for payment
13
Any payments due after the adjustments have been made shall be paid to the
Governments pursuant to the direction of the United States Department of Justice andor the
affected agencies The Governments reserve their rights to disagree with any calculations
submitted by the SCAN Parties or any of their respective subsidiaries or affiliates on the effect of
inclusion of Unallowable Costs (as defined in this Paragraph) on the SCAN Parties or any of
their respective subsidiaries or affiliates cost reports cost statements or information reports
d Nothing in this Agreement shall constitute a waiver of the rights of the
Governments to audit examine or re-examine the SCAN Parties books and records to determine
that no Unallowable Costs have been claimed in accordance with the provisions of this
Paragraph
14 Benefit of the Parties This Agreement is intended to be for the benefit ofthe
Parties only The Parties do not release any claims against any other person or entity except to
the extent provided for in the Paragraph immediately below (waiver for beneficiaries Paragraph)
15 Waiver for Health Care Beneficiaries The SCAN Parties agree that they waive
and shall not seek payment for any of the health care billings covered by this Agreement from
any health care beneficiaries or their parents sponsors legally responsible individuals or third
party payors based upon the claims defined as Covered Conduct
16 Financial Condition SCAN warrants that it has reviewed its financial situation
and that it currently is solvent within the meaning of 11 USC sectsect 547(b)(3) and
548(a)(l)(B)(ii)(I) and shall remain solvent following payment to the Governments ofthe
Settlement Amount Further the Parties warrant that in evaluating whether to execute this
Agreement they (a) have intended that the mutual promises covenants and obligations set forth
14
constitute a contemporaneous exchange for new value given to SCAN within the meaning of 11
USC sect 547(c)(1) and (b) conclude that these mutual promises covenants and obligations do
in fact constitute such a contemporaneous exchange Further the Parties warrant that the mutual
promises covenants and obligations set forth herein are intended to and do in fact represent a
reasonably equivalent exchange of value that is not intended to hinder delay or defraud any
entity to which SCAN was or became indebted to on or after the date of this transfer within the
meaning of 11 USC sect 548(a)(l)
17 Costs With the exception ofRelators expenses attorneys fees and costs if any
under 31 USC sect 3730(d)(1) and California Government Codesect 12652(g)(8) each Party shall
bear its and his own legal and other costs fees and expenses incurred in connection with this
matter including the preparation and performance of this Agreement
18 Governing Law This Agreement is governed by the laws of the United States
The exclusive jurisdiction and venue for any dispute relating to this Agreement is the United
States District Court for the Central District of California
19 Voluntary Agreement Each Party represents that it and he freely voluntarily
knowingly and deliberately enters into this Agreement without any degree of duress
compulsion or misconduct by any of the Parties
20 No Representations Outside this Agreement Each of the Parties acknowledges
that except as expressly set forth in this Agreement no representations of any kind or character
have been made by any other party or that partys ~gents representatives or attorneys to induce
execution or delivery of this Agreement
21 Agreement Drafted by All Parties This Agreement shall be deemed to have been
15
drafted by all Parties to this Agreement and therefore shall not be construed against any Party for
reasons of drafting
22 Complete Agreement This Agreement constitutes the entire agreement of the
Parties with respect to the subject matter of this Agreement and may not be modified amended
or terminated except by a written agreement signed by the Parties specifically referring to this
Agreement and its relevant portions
23 The SCAN Parties Successors etc This Agreement is binding on the SCAN
Parties respective successors transferees and assigns
24 Relators Successors etc This Agreement is binding on Relators successors
transferees heirs and assigns
25 Disclosure All Parties consent to the Governments disclosure of this Agreement
and information about this Agreement to the public
26 Headings The headings in this Agreement are for convenience only do not
constitute a part of this Agreement and shall not limit or affect any of its provisions
27 Capacity to Execute The undersigned counsel represent and warrant that they are
fully authorized to execute this Agreement on behalf of the persons and entities indicated below
The Relator represents that he has the full power authority and competence necessary to enter
into this Agreement
28 Counterparts and Facsimiles This Agreement may be executed in counterparts
each of which constitutes an original and all of which constitute one and the same Agreement
Facsimiles of signatures shall constitute acceptable binding signatures for purposes of this
Agreement
16
29 Effective Date This Agreement is effective on the date of signature of the last
signatory to the Agreement (Effective Date of this Agreement)
In Witness Whereof the Parties through their duly authorized representatives hereunder
set their hands
THE UNITED STATES OF AMERICA
DATED WQ_Qf)_
DATED ~Itk)2shy
DATED_____
Assistant United States Attorney Central District of California
JOHN E LEE Assistant United States Attorney Central District of California
BY __________________
GREGORY E DEMSKE Chief Counsel to the Inspector General Office of Counsel to the Inspector General Office of Inspector General United States Department of Health and Human Services
17
29 Effective Date This Agreement is effective on the date of signature of the last
signatory to the Agreement (Effective Date ofthis Agreement)
In Witness Whereof the Parties through their duly authorized representatives hereunder
set their hands
DATED_____
DATED_____
DATED~
THE UNITED STAT_ES OF AMERlCA
BY ___________________ SUSAN R HERSHMAN Assistant United States Attorney Central District of California
BY -------------------------shyJOHNELEE Assistant United States Attorney
Central District of~
BY __~~~==---~--------------------------GREGORY E DEMSKE Chief Counsel to the Inspector General Office of Counsel to the Inspector General Office of Inspector General United States Department of Health and Human Services
17
--------------
THE STATE OF CALIFORNIA
l 3o)l~ BY __L_~_J_y~----DATED I
B~ V FRANKEL Supervising Deputy Attorney General State of California
DATED---____ BY ___________________________
LORA FOX MARTIN Deputy Attorney General State of California
BY ___________________________DATED_____ TOBY BOUGLAS
Director Department ofHealth Care Services
SCANHEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP B DEFENDANTS
BY ____________________________DATED____ ______ of SCAN Health Plan
DATED____ BY of Senior Care Action Network
----~
BY _______________________ middot DATED-middotmiddot_____ ________ of SCAN Group
18
------
THE STATE OF CALIFORNIA
BY ____________________________DATED_____ BRIAN V FRANKEL Supervising Deputy Attorney General State of California
DATED 1fetz_ ~I B~~~
LO FOX MARTIN Deputy Attorney General State of California
BY _________________________DATED_____ TOBY DOUGLAS
Director Department of Health Care Services
SCANHEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP B DEFENDANTS
DATED____ BY ______________~---------------- of SCAN Health Plan
BYDATEDmiddot--- shy --------~-----of Senior Care Action Network
BY _________________________DATED---_____ _______ of SCAN Group
18
middot THE STATEOF CALIFORNIA
DATED_------- BY _____~-----~------------BRIAN V FRANKEL Supervising DeputY Attorney General State of California
DATED______ BY __~----~-----------------LORA FOX MARTIN Deputy Attorney General State of California
lt)iy middot~~ gt c
~~DOUGLAS 7) middot Director
Department ofHealth Care Services
SCAN HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP DEFENDANTS
BY ________________________~DATED____
--~--- of SCAN Health Plan
DATED____ BY __________~----------of Senior Care Action Network middot------
DATED_____ BY _______________________ _ _______ of scAN Groupmiddot
18
THE STATE OF CALIFORNIA
DATED_____ BY ____________________________
BRIANV FRANKEL Supervising Deputy Attorney General State of California
DATED_____ BY ____________________________
LORA FOX MARTIN Deputy Attorney General State of California
BY ___________________________DATED_____
TOBY DOUGLAS Director Department of Health Care Services
SCAN HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP DEFENDANTS
BY _______lC-----~-----r--~~----------~~ealthPian
BY
BY
18
DATED dz
R GER S GOLDMAN Latham amp Watkins counsel for SCAN Health Plan Senior Care Action Network ann Scan Group
JAM~S Mmiddot S)YQBEN -RELATOR
DATED____ BY ____~--~----~~--- JAMES M SWOSEN
Approved as to form and contellt
DATED_~~__ BY -------=~----------WILLIAM HANAGAMI
The Hanagami Law Firm A Professional Corporation Counsel fDr James M Swoben
19
DATED____ BY _______________ DAVID J SCHINDLER Latham amp Watk1ns Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
DATED_____ BY _______________________
ROGERS GOLDMAN Latham amp Watkins Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
JAMES M SWOBEN- RELATOR
DATED9-() to1---BYbull ~~ JAMES M SWOBEN
(
Approved as to form and content
L ~ ~middotmiddotmiddot- BY middott I amp -middot-- - ____ DATED 1 5t I C ( vbull 7 1bull lr-~A7AGAJ11 The Hanagami Law Firm A Professional Corporation Counsel for James M Swoben
DATED______ BY ABRAM J ZINBERG Counsel for James M Swoben
19
Exhibit 1
20
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 90012 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel [UNDER SEAL] ) NOTICE OF [SEALED] AND
) [PROPOSED]ORDERTHEREON Plaintiffs )
) [LODGED UNDER SEAL v ) pursuant to the False Claim Act
) 31 USC sect 3730(b)(2) and (3)] [UNDER SEAL] )
) [CAPTION ALSO MAY DESIGNATE (Caption continued on next page) ) OTHER DOCUMENTS FILED OR
) LODGED CONCURRENTLY]
21
Defendants )
22
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 900 12 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel ) JAMES M SWOBEN ) NOTICE OF DISMISSAL OF ALL
Plaintiffs ) CLAIMS AGAINST DEFENDANTS v ) SCAN HEALTH PLAN SENIOR
SCAN HEALTH PLAN a California ) CARE ACTION NETWORK AND corporation fka SENIOR CARE ) SCAN GROUP PURSUANT TO ACTION NETWORK SENIOR CARE ) SETTLEMENT AGREEMENT ACTION NETWORK a business entity) CONSENTS OF THE UNITED (Caption continued on next page) ) STATES AND STATE OF form unknown SCAN GROUP a ) CALIFORNIA ATTORNEYS
23
California corporation [NAMES OF ) GENERAL THERETO AND REMAINING DEFENDANTS ) [PROPOSED]ORDERTHEREON SEALED] )
Defendants ) [LODGED UNDER SEAL ) pursuant to the False Claim Act
31 USC sect 3730(b)(2) and (3)]
[CAPTION ALSO MAY DESIGNATE OTHER DOCUMENTS FILED OR LODGED CONCURRENTLY]
Pursuant to Rule 4l(a) of the Federal Rules of Civil Procedure and subject to
and in order to effectuate the settlement agreement among
the Relator James M Swoben (Relator) Defendants SCAN Health Plan
Senior Care Action Network and SCAN Group (collectively the SCAN
Defendants) and the United States of America and the State of California
(collectively the Governments)
the Relator hereby upon the Order of the Court herein
Dismisses all claims for relief and causes of action filed in the above-
captioned action against Defendants SCAN HEALTH PLAN SENIOR CARE
ACTION NETWORK and SCAN GROUP said dismissal being (a) with
prejudice as to the Relator (b) without prejudice to the United States of America as
to the Ninth Claim for Relief of the Third Amended Complaint and (c) with
prejudice to the Governments as to all other claims for relief and causes of action in
all Complaints filed in the above-captioned action against Defendants SCAN
HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP to
the extent that those claims for relief and causes of action are or purport to be filed
pursuant to the False Claims Act 31 USC sect 3729 et seq and the California False
Claims Act California Government Codesect 12650 et seq
Except that the Relator does not dismiss the Relators claim for a relators
share to be paid by the Governments pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(2) As to this claim the Relator
respectfully requests that the Court retain jurisdiction to determine if necessary the
relators share that the Relator should obtain pursuant to 31 USC sect 3730( d)(l) and
California Government Codesect 12652(g)(2) and
Except that the Relator does not dismiss the Relators claim for payment by
any and all of the SCAN Defendants to the Relator of expenses fees and costs
pursuant to 31 USC sect 3730(d)(l) and California Government Code
sect 12652(g)(8) As to this claim the Relator respectfully requests that the Court
retain jurisdiction to determine if necessary the appropriate expenses fees and
25
costs that the Relator should obtain pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(8)
Respectfully submitted
DATED _____ 2012 WILLIAM HANAGAMI ESQ The Hanagami Law Firm
ABRAM J ZINBERG ESQ Attorney at Law
WILLIAM HANAGAMI ESQ Attorneys for Relator JAMES M SWOBEN
26
CONSENT OF THE ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA
Pursuant to 31 USC sect 3730(b )(1) the Attorney General of the United
States of America by and through the undersigned consents to the foregoing
dismissal The reason for the consent of the Attorney General is that the dismissal
is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED _____ 2012 ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section
JOHN E LEE Assistant United States Attorney
Attorneys for the UNITED STATES OF AMERICA
CONSENT OF THE ATTORNEY GENERAL
OF THE STATE OF CALIFORNIA
Pursuant to California Government Codesect 12652(c)(1) the Attorney
General of the State of California by and through the undersigned consents to the
foregoing dismissal The reason for the consent of the Attorney General is that the
dismissal is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED 2012 ---- shy KAMALA D HARRIS Attorney General of California BRIAN V FRANKEL Supervising Deputy Attorney General
LORA FOX MARTIN Deputy Attorney General
Attorneys for the STATE OF CALIFORNIA
IT IS SO ORDERED
This ____ day of _____ 2012
UNITED STATES DISTRICT JUDGE
28
(FEHBP) or any other federal or state program (hereinafter referred to as Unallowable Costs)
b Future Treatment of Unallowable Costs Unallowable Costs shall be
separately determined and accounted for in nonreimbursable cost centers by the SCAN Parties
and the SCAN Parties shall not charge such Unallowable Costs directly or indirectly to any
contracts with the United States California or any state Medicaid program or seek payment for
such Unallowable Costs through any cost report cost statement information statement or
payment request submitted by the SCAN Parties or any of their respective subsidiaries or
affiliates to the Medicare Medicaid TRICARE or FEHBP Programs or to any other federal or
state program
c Treatment of Unallowable Costs Previously Submitted for Payment The
SCAN Parties further agree that within 90 days of the Effective Date of this Agreement they shall
identify to applicable Medicare and TRICARE fiscal intermediaries carriers andor contractors
and Medicaid and FEHBP fiscal agents any Unallowable Costs included in payments previously
sought from the United States California or any state Medicaid program including but not
limited to payments sought in any cost reports cost statements information reports or payment
requests already submitted by the SCAN Parties or any of their respective subsidiaries or
affiliates and shall request and agree that such cost reports cost statements information
reports or payment requests even if already settled be adjusted to account for the effect of the
inclusion of the unallowable costs The SCAN Parties agree that the Governments at a
minimum shall be entitled to recoup from them any overpayment plus applicable interest and
penalties as a result of the inclusion of such Unallowable Costs on previously-submitted cost
reports information reports cost statements or requests for payment
13
Any payments due after the adjustments have been made shall be paid to the
Governments pursuant to the direction of the United States Department of Justice andor the
affected agencies The Governments reserve their rights to disagree with any calculations
submitted by the SCAN Parties or any of their respective subsidiaries or affiliates on the effect of
inclusion of Unallowable Costs (as defined in this Paragraph) on the SCAN Parties or any of
their respective subsidiaries or affiliates cost reports cost statements or information reports
d Nothing in this Agreement shall constitute a waiver of the rights of the
Governments to audit examine or re-examine the SCAN Parties books and records to determine
that no Unallowable Costs have been claimed in accordance with the provisions of this
Paragraph
14 Benefit of the Parties This Agreement is intended to be for the benefit ofthe
Parties only The Parties do not release any claims against any other person or entity except to
the extent provided for in the Paragraph immediately below (waiver for beneficiaries Paragraph)
15 Waiver for Health Care Beneficiaries The SCAN Parties agree that they waive
and shall not seek payment for any of the health care billings covered by this Agreement from
any health care beneficiaries or their parents sponsors legally responsible individuals or third
party payors based upon the claims defined as Covered Conduct
16 Financial Condition SCAN warrants that it has reviewed its financial situation
and that it currently is solvent within the meaning of 11 USC sectsect 547(b)(3) and
548(a)(l)(B)(ii)(I) and shall remain solvent following payment to the Governments ofthe
Settlement Amount Further the Parties warrant that in evaluating whether to execute this
Agreement they (a) have intended that the mutual promises covenants and obligations set forth
14
constitute a contemporaneous exchange for new value given to SCAN within the meaning of 11
USC sect 547(c)(1) and (b) conclude that these mutual promises covenants and obligations do
in fact constitute such a contemporaneous exchange Further the Parties warrant that the mutual
promises covenants and obligations set forth herein are intended to and do in fact represent a
reasonably equivalent exchange of value that is not intended to hinder delay or defraud any
entity to which SCAN was or became indebted to on or after the date of this transfer within the
meaning of 11 USC sect 548(a)(l)
17 Costs With the exception ofRelators expenses attorneys fees and costs if any
under 31 USC sect 3730(d)(1) and California Government Codesect 12652(g)(8) each Party shall
bear its and his own legal and other costs fees and expenses incurred in connection with this
matter including the preparation and performance of this Agreement
18 Governing Law This Agreement is governed by the laws of the United States
The exclusive jurisdiction and venue for any dispute relating to this Agreement is the United
States District Court for the Central District of California
19 Voluntary Agreement Each Party represents that it and he freely voluntarily
knowingly and deliberately enters into this Agreement without any degree of duress
compulsion or misconduct by any of the Parties
20 No Representations Outside this Agreement Each of the Parties acknowledges
that except as expressly set forth in this Agreement no representations of any kind or character
have been made by any other party or that partys ~gents representatives or attorneys to induce
execution or delivery of this Agreement
21 Agreement Drafted by All Parties This Agreement shall be deemed to have been
15
drafted by all Parties to this Agreement and therefore shall not be construed against any Party for
reasons of drafting
22 Complete Agreement This Agreement constitutes the entire agreement of the
Parties with respect to the subject matter of this Agreement and may not be modified amended
or terminated except by a written agreement signed by the Parties specifically referring to this
Agreement and its relevant portions
23 The SCAN Parties Successors etc This Agreement is binding on the SCAN
Parties respective successors transferees and assigns
24 Relators Successors etc This Agreement is binding on Relators successors
transferees heirs and assigns
25 Disclosure All Parties consent to the Governments disclosure of this Agreement
and information about this Agreement to the public
26 Headings The headings in this Agreement are for convenience only do not
constitute a part of this Agreement and shall not limit or affect any of its provisions
27 Capacity to Execute The undersigned counsel represent and warrant that they are
fully authorized to execute this Agreement on behalf of the persons and entities indicated below
The Relator represents that he has the full power authority and competence necessary to enter
into this Agreement
28 Counterparts and Facsimiles This Agreement may be executed in counterparts
each of which constitutes an original and all of which constitute one and the same Agreement
Facsimiles of signatures shall constitute acceptable binding signatures for purposes of this
Agreement
16
29 Effective Date This Agreement is effective on the date of signature of the last
signatory to the Agreement (Effective Date of this Agreement)
In Witness Whereof the Parties through their duly authorized representatives hereunder
set their hands
THE UNITED STATES OF AMERICA
DATED WQ_Qf)_
DATED ~Itk)2shy
DATED_____
Assistant United States Attorney Central District of California
JOHN E LEE Assistant United States Attorney Central District of California
BY __________________
GREGORY E DEMSKE Chief Counsel to the Inspector General Office of Counsel to the Inspector General Office of Inspector General United States Department of Health and Human Services
17
29 Effective Date This Agreement is effective on the date of signature of the last
signatory to the Agreement (Effective Date ofthis Agreement)
In Witness Whereof the Parties through their duly authorized representatives hereunder
set their hands
DATED_____
DATED_____
DATED~
THE UNITED STAT_ES OF AMERlCA
BY ___________________ SUSAN R HERSHMAN Assistant United States Attorney Central District of California
BY -------------------------shyJOHNELEE Assistant United States Attorney
Central District of~
BY __~~~==---~--------------------------GREGORY E DEMSKE Chief Counsel to the Inspector General Office of Counsel to the Inspector General Office of Inspector General United States Department of Health and Human Services
17
--------------
THE STATE OF CALIFORNIA
l 3o)l~ BY __L_~_J_y~----DATED I
B~ V FRANKEL Supervising Deputy Attorney General State of California
DATED---____ BY ___________________________
LORA FOX MARTIN Deputy Attorney General State of California
BY ___________________________DATED_____ TOBY BOUGLAS
Director Department ofHealth Care Services
SCANHEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP B DEFENDANTS
BY ____________________________DATED____ ______ of SCAN Health Plan
DATED____ BY of Senior Care Action Network
----~
BY _______________________ middot DATED-middotmiddot_____ ________ of SCAN Group
18
------
THE STATE OF CALIFORNIA
BY ____________________________DATED_____ BRIAN V FRANKEL Supervising Deputy Attorney General State of California
DATED 1fetz_ ~I B~~~
LO FOX MARTIN Deputy Attorney General State of California
BY _________________________DATED_____ TOBY DOUGLAS
Director Department of Health Care Services
SCANHEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP B DEFENDANTS
DATED____ BY ______________~---------------- of SCAN Health Plan
BYDATEDmiddot--- shy --------~-----of Senior Care Action Network
BY _________________________DATED---_____ _______ of SCAN Group
18
middot THE STATEOF CALIFORNIA
DATED_------- BY _____~-----~------------BRIAN V FRANKEL Supervising DeputY Attorney General State of California
DATED______ BY __~----~-----------------LORA FOX MARTIN Deputy Attorney General State of California
lt)iy middot~~ gt c
~~DOUGLAS 7) middot Director
Department ofHealth Care Services
SCAN HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP DEFENDANTS
BY ________________________~DATED____
--~--- of SCAN Health Plan
DATED____ BY __________~----------of Senior Care Action Network middot------
DATED_____ BY _______________________ _ _______ of scAN Groupmiddot
18
THE STATE OF CALIFORNIA
DATED_____ BY ____________________________
BRIANV FRANKEL Supervising Deputy Attorney General State of California
DATED_____ BY ____________________________
LORA FOX MARTIN Deputy Attorney General State of California
BY ___________________________DATED_____
TOBY DOUGLAS Director Department of Health Care Services
SCAN HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP DEFENDANTS
BY _______lC-----~-----r--~~----------~~ealthPian
BY
BY
18
DATED dz
R GER S GOLDMAN Latham amp Watkins counsel for SCAN Health Plan Senior Care Action Network ann Scan Group
JAM~S Mmiddot S)YQBEN -RELATOR
DATED____ BY ____~--~----~~--- JAMES M SWOSEN
Approved as to form and contellt
DATED_~~__ BY -------=~----------WILLIAM HANAGAMI
The Hanagami Law Firm A Professional Corporation Counsel fDr James M Swoben
19
DATED____ BY _______________ DAVID J SCHINDLER Latham amp Watk1ns Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
DATED_____ BY _______________________
ROGERS GOLDMAN Latham amp Watkins Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
JAMES M SWOBEN- RELATOR
DATED9-() to1---BYbull ~~ JAMES M SWOBEN
(
Approved as to form and content
L ~ ~middotmiddotmiddot- BY middott I amp -middot-- - ____ DATED 1 5t I C ( vbull 7 1bull lr-~A7AGAJ11 The Hanagami Law Firm A Professional Corporation Counsel for James M Swoben
DATED______ BY ABRAM J ZINBERG Counsel for James M Swoben
19
Exhibit 1
20
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 90012 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel [UNDER SEAL] ) NOTICE OF [SEALED] AND
) [PROPOSED]ORDERTHEREON Plaintiffs )
) [LODGED UNDER SEAL v ) pursuant to the False Claim Act
) 31 USC sect 3730(b)(2) and (3)] [UNDER SEAL] )
) [CAPTION ALSO MAY DESIGNATE (Caption continued on next page) ) OTHER DOCUMENTS FILED OR
) LODGED CONCURRENTLY]
21
Defendants )
22
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 900 12 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel ) JAMES M SWOBEN ) NOTICE OF DISMISSAL OF ALL
Plaintiffs ) CLAIMS AGAINST DEFENDANTS v ) SCAN HEALTH PLAN SENIOR
SCAN HEALTH PLAN a California ) CARE ACTION NETWORK AND corporation fka SENIOR CARE ) SCAN GROUP PURSUANT TO ACTION NETWORK SENIOR CARE ) SETTLEMENT AGREEMENT ACTION NETWORK a business entity) CONSENTS OF THE UNITED (Caption continued on next page) ) STATES AND STATE OF form unknown SCAN GROUP a ) CALIFORNIA ATTORNEYS
23
California corporation [NAMES OF ) GENERAL THERETO AND REMAINING DEFENDANTS ) [PROPOSED]ORDERTHEREON SEALED] )
Defendants ) [LODGED UNDER SEAL ) pursuant to the False Claim Act
31 USC sect 3730(b)(2) and (3)]
[CAPTION ALSO MAY DESIGNATE OTHER DOCUMENTS FILED OR LODGED CONCURRENTLY]
Pursuant to Rule 4l(a) of the Federal Rules of Civil Procedure and subject to
and in order to effectuate the settlement agreement among
the Relator James M Swoben (Relator) Defendants SCAN Health Plan
Senior Care Action Network and SCAN Group (collectively the SCAN
Defendants) and the United States of America and the State of California
(collectively the Governments)
the Relator hereby upon the Order of the Court herein
Dismisses all claims for relief and causes of action filed in the above-
captioned action against Defendants SCAN HEALTH PLAN SENIOR CARE
ACTION NETWORK and SCAN GROUP said dismissal being (a) with
prejudice as to the Relator (b) without prejudice to the United States of America as
to the Ninth Claim for Relief of the Third Amended Complaint and (c) with
prejudice to the Governments as to all other claims for relief and causes of action in
all Complaints filed in the above-captioned action against Defendants SCAN
HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP to
the extent that those claims for relief and causes of action are or purport to be filed
pursuant to the False Claims Act 31 USC sect 3729 et seq and the California False
Claims Act California Government Codesect 12650 et seq
Except that the Relator does not dismiss the Relators claim for a relators
share to be paid by the Governments pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(2) As to this claim the Relator
respectfully requests that the Court retain jurisdiction to determine if necessary the
relators share that the Relator should obtain pursuant to 31 USC sect 3730( d)(l) and
California Government Codesect 12652(g)(2) and
Except that the Relator does not dismiss the Relators claim for payment by
any and all of the SCAN Defendants to the Relator of expenses fees and costs
pursuant to 31 USC sect 3730(d)(l) and California Government Code
sect 12652(g)(8) As to this claim the Relator respectfully requests that the Court
retain jurisdiction to determine if necessary the appropriate expenses fees and
25
costs that the Relator should obtain pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(8)
Respectfully submitted
DATED _____ 2012 WILLIAM HANAGAMI ESQ The Hanagami Law Firm
ABRAM J ZINBERG ESQ Attorney at Law
WILLIAM HANAGAMI ESQ Attorneys for Relator JAMES M SWOBEN
26
CONSENT OF THE ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA
Pursuant to 31 USC sect 3730(b )(1) the Attorney General of the United
States of America by and through the undersigned consents to the foregoing
dismissal The reason for the consent of the Attorney General is that the dismissal
is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED _____ 2012 ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section
JOHN E LEE Assistant United States Attorney
Attorneys for the UNITED STATES OF AMERICA
CONSENT OF THE ATTORNEY GENERAL
OF THE STATE OF CALIFORNIA
Pursuant to California Government Codesect 12652(c)(1) the Attorney
General of the State of California by and through the undersigned consents to the
foregoing dismissal The reason for the consent of the Attorney General is that the
dismissal is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED 2012 ---- shy KAMALA D HARRIS Attorney General of California BRIAN V FRANKEL Supervising Deputy Attorney General
LORA FOX MARTIN Deputy Attorney General
Attorneys for the STATE OF CALIFORNIA
IT IS SO ORDERED
This ____ day of _____ 2012
UNITED STATES DISTRICT JUDGE
28
Any payments due after the adjustments have been made shall be paid to the
Governments pursuant to the direction of the United States Department of Justice andor the
affected agencies The Governments reserve their rights to disagree with any calculations
submitted by the SCAN Parties or any of their respective subsidiaries or affiliates on the effect of
inclusion of Unallowable Costs (as defined in this Paragraph) on the SCAN Parties or any of
their respective subsidiaries or affiliates cost reports cost statements or information reports
d Nothing in this Agreement shall constitute a waiver of the rights of the
Governments to audit examine or re-examine the SCAN Parties books and records to determine
that no Unallowable Costs have been claimed in accordance with the provisions of this
Paragraph
14 Benefit of the Parties This Agreement is intended to be for the benefit ofthe
Parties only The Parties do not release any claims against any other person or entity except to
the extent provided for in the Paragraph immediately below (waiver for beneficiaries Paragraph)
15 Waiver for Health Care Beneficiaries The SCAN Parties agree that they waive
and shall not seek payment for any of the health care billings covered by this Agreement from
any health care beneficiaries or their parents sponsors legally responsible individuals or third
party payors based upon the claims defined as Covered Conduct
16 Financial Condition SCAN warrants that it has reviewed its financial situation
and that it currently is solvent within the meaning of 11 USC sectsect 547(b)(3) and
548(a)(l)(B)(ii)(I) and shall remain solvent following payment to the Governments ofthe
Settlement Amount Further the Parties warrant that in evaluating whether to execute this
Agreement they (a) have intended that the mutual promises covenants and obligations set forth
14
constitute a contemporaneous exchange for new value given to SCAN within the meaning of 11
USC sect 547(c)(1) and (b) conclude that these mutual promises covenants and obligations do
in fact constitute such a contemporaneous exchange Further the Parties warrant that the mutual
promises covenants and obligations set forth herein are intended to and do in fact represent a
reasonably equivalent exchange of value that is not intended to hinder delay or defraud any
entity to which SCAN was or became indebted to on or after the date of this transfer within the
meaning of 11 USC sect 548(a)(l)
17 Costs With the exception ofRelators expenses attorneys fees and costs if any
under 31 USC sect 3730(d)(1) and California Government Codesect 12652(g)(8) each Party shall
bear its and his own legal and other costs fees and expenses incurred in connection with this
matter including the preparation and performance of this Agreement
18 Governing Law This Agreement is governed by the laws of the United States
The exclusive jurisdiction and venue for any dispute relating to this Agreement is the United
States District Court for the Central District of California
19 Voluntary Agreement Each Party represents that it and he freely voluntarily
knowingly and deliberately enters into this Agreement without any degree of duress
compulsion or misconduct by any of the Parties
20 No Representations Outside this Agreement Each of the Parties acknowledges
that except as expressly set forth in this Agreement no representations of any kind or character
have been made by any other party or that partys ~gents representatives or attorneys to induce
execution or delivery of this Agreement
21 Agreement Drafted by All Parties This Agreement shall be deemed to have been
15
drafted by all Parties to this Agreement and therefore shall not be construed against any Party for
reasons of drafting
22 Complete Agreement This Agreement constitutes the entire agreement of the
Parties with respect to the subject matter of this Agreement and may not be modified amended
or terminated except by a written agreement signed by the Parties specifically referring to this
Agreement and its relevant portions
23 The SCAN Parties Successors etc This Agreement is binding on the SCAN
Parties respective successors transferees and assigns
24 Relators Successors etc This Agreement is binding on Relators successors
transferees heirs and assigns
25 Disclosure All Parties consent to the Governments disclosure of this Agreement
and information about this Agreement to the public
26 Headings The headings in this Agreement are for convenience only do not
constitute a part of this Agreement and shall not limit or affect any of its provisions
27 Capacity to Execute The undersigned counsel represent and warrant that they are
fully authorized to execute this Agreement on behalf of the persons and entities indicated below
The Relator represents that he has the full power authority and competence necessary to enter
into this Agreement
28 Counterparts and Facsimiles This Agreement may be executed in counterparts
each of which constitutes an original and all of which constitute one and the same Agreement
Facsimiles of signatures shall constitute acceptable binding signatures for purposes of this
Agreement
16
29 Effective Date This Agreement is effective on the date of signature of the last
signatory to the Agreement (Effective Date of this Agreement)
In Witness Whereof the Parties through their duly authorized representatives hereunder
set their hands
THE UNITED STATES OF AMERICA
DATED WQ_Qf)_
DATED ~Itk)2shy
DATED_____
Assistant United States Attorney Central District of California
JOHN E LEE Assistant United States Attorney Central District of California
BY __________________
GREGORY E DEMSKE Chief Counsel to the Inspector General Office of Counsel to the Inspector General Office of Inspector General United States Department of Health and Human Services
17
29 Effective Date This Agreement is effective on the date of signature of the last
signatory to the Agreement (Effective Date ofthis Agreement)
In Witness Whereof the Parties through their duly authorized representatives hereunder
set their hands
DATED_____
DATED_____
DATED~
THE UNITED STAT_ES OF AMERlCA
BY ___________________ SUSAN R HERSHMAN Assistant United States Attorney Central District of California
BY -------------------------shyJOHNELEE Assistant United States Attorney
Central District of~
BY __~~~==---~--------------------------GREGORY E DEMSKE Chief Counsel to the Inspector General Office of Counsel to the Inspector General Office of Inspector General United States Department of Health and Human Services
17
--------------
THE STATE OF CALIFORNIA
l 3o)l~ BY __L_~_J_y~----DATED I
B~ V FRANKEL Supervising Deputy Attorney General State of California
DATED---____ BY ___________________________
LORA FOX MARTIN Deputy Attorney General State of California
BY ___________________________DATED_____ TOBY BOUGLAS
Director Department ofHealth Care Services
SCANHEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP B DEFENDANTS
BY ____________________________DATED____ ______ of SCAN Health Plan
DATED____ BY of Senior Care Action Network
----~
BY _______________________ middot DATED-middotmiddot_____ ________ of SCAN Group
18
------
THE STATE OF CALIFORNIA
BY ____________________________DATED_____ BRIAN V FRANKEL Supervising Deputy Attorney General State of California
DATED 1fetz_ ~I B~~~
LO FOX MARTIN Deputy Attorney General State of California
BY _________________________DATED_____ TOBY DOUGLAS
Director Department of Health Care Services
SCANHEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP B DEFENDANTS
DATED____ BY ______________~---------------- of SCAN Health Plan
BYDATEDmiddot--- shy --------~-----of Senior Care Action Network
BY _________________________DATED---_____ _______ of SCAN Group
18
middot THE STATEOF CALIFORNIA
DATED_------- BY _____~-----~------------BRIAN V FRANKEL Supervising DeputY Attorney General State of California
DATED______ BY __~----~-----------------LORA FOX MARTIN Deputy Attorney General State of California
lt)iy middot~~ gt c
~~DOUGLAS 7) middot Director
Department ofHealth Care Services
SCAN HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP DEFENDANTS
BY ________________________~DATED____
--~--- of SCAN Health Plan
DATED____ BY __________~----------of Senior Care Action Network middot------
DATED_____ BY _______________________ _ _______ of scAN Groupmiddot
18
THE STATE OF CALIFORNIA
DATED_____ BY ____________________________
BRIANV FRANKEL Supervising Deputy Attorney General State of California
DATED_____ BY ____________________________
LORA FOX MARTIN Deputy Attorney General State of California
BY ___________________________DATED_____
TOBY DOUGLAS Director Department of Health Care Services
SCAN HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP DEFENDANTS
BY _______lC-----~-----r--~~----------~~ealthPian
BY
BY
18
DATED dz
R GER S GOLDMAN Latham amp Watkins counsel for SCAN Health Plan Senior Care Action Network ann Scan Group
JAM~S Mmiddot S)YQBEN -RELATOR
DATED____ BY ____~--~----~~--- JAMES M SWOSEN
Approved as to form and contellt
DATED_~~__ BY -------=~----------WILLIAM HANAGAMI
The Hanagami Law Firm A Professional Corporation Counsel fDr James M Swoben
19
DATED____ BY _______________ DAVID J SCHINDLER Latham amp Watk1ns Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
DATED_____ BY _______________________
ROGERS GOLDMAN Latham amp Watkins Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
JAMES M SWOBEN- RELATOR
DATED9-() to1---BYbull ~~ JAMES M SWOBEN
(
Approved as to form and content
L ~ ~middotmiddotmiddot- BY middott I amp -middot-- - ____ DATED 1 5t I C ( vbull 7 1bull lr-~A7AGAJ11 The Hanagami Law Firm A Professional Corporation Counsel for James M Swoben
DATED______ BY ABRAM J ZINBERG Counsel for James M Swoben
19
Exhibit 1
20
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 90012 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel [UNDER SEAL] ) NOTICE OF [SEALED] AND
) [PROPOSED]ORDERTHEREON Plaintiffs )
) [LODGED UNDER SEAL v ) pursuant to the False Claim Act
) 31 USC sect 3730(b)(2) and (3)] [UNDER SEAL] )
) [CAPTION ALSO MAY DESIGNATE (Caption continued on next page) ) OTHER DOCUMENTS FILED OR
) LODGED CONCURRENTLY]
21
Defendants )
22
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 900 12 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel ) JAMES M SWOBEN ) NOTICE OF DISMISSAL OF ALL
Plaintiffs ) CLAIMS AGAINST DEFENDANTS v ) SCAN HEALTH PLAN SENIOR
SCAN HEALTH PLAN a California ) CARE ACTION NETWORK AND corporation fka SENIOR CARE ) SCAN GROUP PURSUANT TO ACTION NETWORK SENIOR CARE ) SETTLEMENT AGREEMENT ACTION NETWORK a business entity) CONSENTS OF THE UNITED (Caption continued on next page) ) STATES AND STATE OF form unknown SCAN GROUP a ) CALIFORNIA ATTORNEYS
23
California corporation [NAMES OF ) GENERAL THERETO AND REMAINING DEFENDANTS ) [PROPOSED]ORDERTHEREON SEALED] )
Defendants ) [LODGED UNDER SEAL ) pursuant to the False Claim Act
31 USC sect 3730(b)(2) and (3)]
[CAPTION ALSO MAY DESIGNATE OTHER DOCUMENTS FILED OR LODGED CONCURRENTLY]
Pursuant to Rule 4l(a) of the Federal Rules of Civil Procedure and subject to
and in order to effectuate the settlement agreement among
the Relator James M Swoben (Relator) Defendants SCAN Health Plan
Senior Care Action Network and SCAN Group (collectively the SCAN
Defendants) and the United States of America and the State of California
(collectively the Governments)
the Relator hereby upon the Order of the Court herein
Dismisses all claims for relief and causes of action filed in the above-
captioned action against Defendants SCAN HEALTH PLAN SENIOR CARE
ACTION NETWORK and SCAN GROUP said dismissal being (a) with
prejudice as to the Relator (b) without prejudice to the United States of America as
to the Ninth Claim for Relief of the Third Amended Complaint and (c) with
prejudice to the Governments as to all other claims for relief and causes of action in
all Complaints filed in the above-captioned action against Defendants SCAN
HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP to
the extent that those claims for relief and causes of action are or purport to be filed
pursuant to the False Claims Act 31 USC sect 3729 et seq and the California False
Claims Act California Government Codesect 12650 et seq
Except that the Relator does not dismiss the Relators claim for a relators
share to be paid by the Governments pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(2) As to this claim the Relator
respectfully requests that the Court retain jurisdiction to determine if necessary the
relators share that the Relator should obtain pursuant to 31 USC sect 3730( d)(l) and
California Government Codesect 12652(g)(2) and
Except that the Relator does not dismiss the Relators claim for payment by
any and all of the SCAN Defendants to the Relator of expenses fees and costs
pursuant to 31 USC sect 3730(d)(l) and California Government Code
sect 12652(g)(8) As to this claim the Relator respectfully requests that the Court
retain jurisdiction to determine if necessary the appropriate expenses fees and
25
costs that the Relator should obtain pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(8)
Respectfully submitted
DATED _____ 2012 WILLIAM HANAGAMI ESQ The Hanagami Law Firm
ABRAM J ZINBERG ESQ Attorney at Law
WILLIAM HANAGAMI ESQ Attorneys for Relator JAMES M SWOBEN
26
CONSENT OF THE ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA
Pursuant to 31 USC sect 3730(b )(1) the Attorney General of the United
States of America by and through the undersigned consents to the foregoing
dismissal The reason for the consent of the Attorney General is that the dismissal
is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED _____ 2012 ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section
JOHN E LEE Assistant United States Attorney
Attorneys for the UNITED STATES OF AMERICA
CONSENT OF THE ATTORNEY GENERAL
OF THE STATE OF CALIFORNIA
Pursuant to California Government Codesect 12652(c)(1) the Attorney
General of the State of California by and through the undersigned consents to the
foregoing dismissal The reason for the consent of the Attorney General is that the
dismissal is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED 2012 ---- shy KAMALA D HARRIS Attorney General of California BRIAN V FRANKEL Supervising Deputy Attorney General
LORA FOX MARTIN Deputy Attorney General
Attorneys for the STATE OF CALIFORNIA
IT IS SO ORDERED
This ____ day of _____ 2012
UNITED STATES DISTRICT JUDGE
28
constitute a contemporaneous exchange for new value given to SCAN within the meaning of 11
USC sect 547(c)(1) and (b) conclude that these mutual promises covenants and obligations do
in fact constitute such a contemporaneous exchange Further the Parties warrant that the mutual
promises covenants and obligations set forth herein are intended to and do in fact represent a
reasonably equivalent exchange of value that is not intended to hinder delay or defraud any
entity to which SCAN was or became indebted to on or after the date of this transfer within the
meaning of 11 USC sect 548(a)(l)
17 Costs With the exception ofRelators expenses attorneys fees and costs if any
under 31 USC sect 3730(d)(1) and California Government Codesect 12652(g)(8) each Party shall
bear its and his own legal and other costs fees and expenses incurred in connection with this
matter including the preparation and performance of this Agreement
18 Governing Law This Agreement is governed by the laws of the United States
The exclusive jurisdiction and venue for any dispute relating to this Agreement is the United
States District Court for the Central District of California
19 Voluntary Agreement Each Party represents that it and he freely voluntarily
knowingly and deliberately enters into this Agreement without any degree of duress
compulsion or misconduct by any of the Parties
20 No Representations Outside this Agreement Each of the Parties acknowledges
that except as expressly set forth in this Agreement no representations of any kind or character
have been made by any other party or that partys ~gents representatives or attorneys to induce
execution or delivery of this Agreement
21 Agreement Drafted by All Parties This Agreement shall be deemed to have been
15
drafted by all Parties to this Agreement and therefore shall not be construed against any Party for
reasons of drafting
22 Complete Agreement This Agreement constitutes the entire agreement of the
Parties with respect to the subject matter of this Agreement and may not be modified amended
or terminated except by a written agreement signed by the Parties specifically referring to this
Agreement and its relevant portions
23 The SCAN Parties Successors etc This Agreement is binding on the SCAN
Parties respective successors transferees and assigns
24 Relators Successors etc This Agreement is binding on Relators successors
transferees heirs and assigns
25 Disclosure All Parties consent to the Governments disclosure of this Agreement
and information about this Agreement to the public
26 Headings The headings in this Agreement are for convenience only do not
constitute a part of this Agreement and shall not limit or affect any of its provisions
27 Capacity to Execute The undersigned counsel represent and warrant that they are
fully authorized to execute this Agreement on behalf of the persons and entities indicated below
The Relator represents that he has the full power authority and competence necessary to enter
into this Agreement
28 Counterparts and Facsimiles This Agreement may be executed in counterparts
each of which constitutes an original and all of which constitute one and the same Agreement
Facsimiles of signatures shall constitute acceptable binding signatures for purposes of this
Agreement
16
29 Effective Date This Agreement is effective on the date of signature of the last
signatory to the Agreement (Effective Date of this Agreement)
In Witness Whereof the Parties through their duly authorized representatives hereunder
set their hands
THE UNITED STATES OF AMERICA
DATED WQ_Qf)_
DATED ~Itk)2shy
DATED_____
Assistant United States Attorney Central District of California
JOHN E LEE Assistant United States Attorney Central District of California
BY __________________
GREGORY E DEMSKE Chief Counsel to the Inspector General Office of Counsel to the Inspector General Office of Inspector General United States Department of Health and Human Services
17
29 Effective Date This Agreement is effective on the date of signature of the last
signatory to the Agreement (Effective Date ofthis Agreement)
In Witness Whereof the Parties through their duly authorized representatives hereunder
set their hands
DATED_____
DATED_____
DATED~
THE UNITED STAT_ES OF AMERlCA
BY ___________________ SUSAN R HERSHMAN Assistant United States Attorney Central District of California
BY -------------------------shyJOHNELEE Assistant United States Attorney
Central District of~
BY __~~~==---~--------------------------GREGORY E DEMSKE Chief Counsel to the Inspector General Office of Counsel to the Inspector General Office of Inspector General United States Department of Health and Human Services
17
--------------
THE STATE OF CALIFORNIA
l 3o)l~ BY __L_~_J_y~----DATED I
B~ V FRANKEL Supervising Deputy Attorney General State of California
DATED---____ BY ___________________________
LORA FOX MARTIN Deputy Attorney General State of California
BY ___________________________DATED_____ TOBY BOUGLAS
Director Department ofHealth Care Services
SCANHEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP B DEFENDANTS
BY ____________________________DATED____ ______ of SCAN Health Plan
DATED____ BY of Senior Care Action Network
----~
BY _______________________ middot DATED-middotmiddot_____ ________ of SCAN Group
18
------
THE STATE OF CALIFORNIA
BY ____________________________DATED_____ BRIAN V FRANKEL Supervising Deputy Attorney General State of California
DATED 1fetz_ ~I B~~~
LO FOX MARTIN Deputy Attorney General State of California
BY _________________________DATED_____ TOBY DOUGLAS
Director Department of Health Care Services
SCANHEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP B DEFENDANTS
DATED____ BY ______________~---------------- of SCAN Health Plan
BYDATEDmiddot--- shy --------~-----of Senior Care Action Network
BY _________________________DATED---_____ _______ of SCAN Group
18
middot THE STATEOF CALIFORNIA
DATED_------- BY _____~-----~------------BRIAN V FRANKEL Supervising DeputY Attorney General State of California
DATED______ BY __~----~-----------------LORA FOX MARTIN Deputy Attorney General State of California
lt)iy middot~~ gt c
~~DOUGLAS 7) middot Director
Department ofHealth Care Services
SCAN HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP DEFENDANTS
BY ________________________~DATED____
--~--- of SCAN Health Plan
DATED____ BY __________~----------of Senior Care Action Network middot------
DATED_____ BY _______________________ _ _______ of scAN Groupmiddot
18
THE STATE OF CALIFORNIA
DATED_____ BY ____________________________
BRIANV FRANKEL Supervising Deputy Attorney General State of California
DATED_____ BY ____________________________
LORA FOX MARTIN Deputy Attorney General State of California
BY ___________________________DATED_____
TOBY DOUGLAS Director Department of Health Care Services
SCAN HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP DEFENDANTS
BY _______lC-----~-----r--~~----------~~ealthPian
BY
BY
18
DATED dz
R GER S GOLDMAN Latham amp Watkins counsel for SCAN Health Plan Senior Care Action Network ann Scan Group
JAM~S Mmiddot S)YQBEN -RELATOR
DATED____ BY ____~--~----~~--- JAMES M SWOSEN
Approved as to form and contellt
DATED_~~__ BY -------=~----------WILLIAM HANAGAMI
The Hanagami Law Firm A Professional Corporation Counsel fDr James M Swoben
19
DATED____ BY _______________ DAVID J SCHINDLER Latham amp Watk1ns Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
DATED_____ BY _______________________
ROGERS GOLDMAN Latham amp Watkins Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
JAMES M SWOBEN- RELATOR
DATED9-() to1---BYbull ~~ JAMES M SWOBEN
(
Approved as to form and content
L ~ ~middotmiddotmiddot- BY middott I amp -middot-- - ____ DATED 1 5t I C ( vbull 7 1bull lr-~A7AGAJ11 The Hanagami Law Firm A Professional Corporation Counsel for James M Swoben
DATED______ BY ABRAM J ZINBERG Counsel for James M Swoben
19
Exhibit 1
20
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 90012 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel [UNDER SEAL] ) NOTICE OF [SEALED] AND
) [PROPOSED]ORDERTHEREON Plaintiffs )
) [LODGED UNDER SEAL v ) pursuant to the False Claim Act
) 31 USC sect 3730(b)(2) and (3)] [UNDER SEAL] )
) [CAPTION ALSO MAY DESIGNATE (Caption continued on next page) ) OTHER DOCUMENTS FILED OR
) LODGED CONCURRENTLY]
21
Defendants )
22
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 900 12 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel ) JAMES M SWOBEN ) NOTICE OF DISMISSAL OF ALL
Plaintiffs ) CLAIMS AGAINST DEFENDANTS v ) SCAN HEALTH PLAN SENIOR
SCAN HEALTH PLAN a California ) CARE ACTION NETWORK AND corporation fka SENIOR CARE ) SCAN GROUP PURSUANT TO ACTION NETWORK SENIOR CARE ) SETTLEMENT AGREEMENT ACTION NETWORK a business entity) CONSENTS OF THE UNITED (Caption continued on next page) ) STATES AND STATE OF form unknown SCAN GROUP a ) CALIFORNIA ATTORNEYS
23
California corporation [NAMES OF ) GENERAL THERETO AND REMAINING DEFENDANTS ) [PROPOSED]ORDERTHEREON SEALED] )
Defendants ) [LODGED UNDER SEAL ) pursuant to the False Claim Act
31 USC sect 3730(b)(2) and (3)]
[CAPTION ALSO MAY DESIGNATE OTHER DOCUMENTS FILED OR LODGED CONCURRENTLY]
Pursuant to Rule 4l(a) of the Federal Rules of Civil Procedure and subject to
and in order to effectuate the settlement agreement among
the Relator James M Swoben (Relator) Defendants SCAN Health Plan
Senior Care Action Network and SCAN Group (collectively the SCAN
Defendants) and the United States of America and the State of California
(collectively the Governments)
the Relator hereby upon the Order of the Court herein
Dismisses all claims for relief and causes of action filed in the above-
captioned action against Defendants SCAN HEALTH PLAN SENIOR CARE
ACTION NETWORK and SCAN GROUP said dismissal being (a) with
prejudice as to the Relator (b) without prejudice to the United States of America as
to the Ninth Claim for Relief of the Third Amended Complaint and (c) with
prejudice to the Governments as to all other claims for relief and causes of action in
all Complaints filed in the above-captioned action against Defendants SCAN
HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP to
the extent that those claims for relief and causes of action are or purport to be filed
pursuant to the False Claims Act 31 USC sect 3729 et seq and the California False
Claims Act California Government Codesect 12650 et seq
Except that the Relator does not dismiss the Relators claim for a relators
share to be paid by the Governments pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(2) As to this claim the Relator
respectfully requests that the Court retain jurisdiction to determine if necessary the
relators share that the Relator should obtain pursuant to 31 USC sect 3730( d)(l) and
California Government Codesect 12652(g)(2) and
Except that the Relator does not dismiss the Relators claim for payment by
any and all of the SCAN Defendants to the Relator of expenses fees and costs
pursuant to 31 USC sect 3730(d)(l) and California Government Code
sect 12652(g)(8) As to this claim the Relator respectfully requests that the Court
retain jurisdiction to determine if necessary the appropriate expenses fees and
25
costs that the Relator should obtain pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(8)
Respectfully submitted
DATED _____ 2012 WILLIAM HANAGAMI ESQ The Hanagami Law Firm
ABRAM J ZINBERG ESQ Attorney at Law
WILLIAM HANAGAMI ESQ Attorneys for Relator JAMES M SWOBEN
26
CONSENT OF THE ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA
Pursuant to 31 USC sect 3730(b )(1) the Attorney General of the United
States of America by and through the undersigned consents to the foregoing
dismissal The reason for the consent of the Attorney General is that the dismissal
is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED _____ 2012 ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section
JOHN E LEE Assistant United States Attorney
Attorneys for the UNITED STATES OF AMERICA
CONSENT OF THE ATTORNEY GENERAL
OF THE STATE OF CALIFORNIA
Pursuant to California Government Codesect 12652(c)(1) the Attorney
General of the State of California by and through the undersigned consents to the
foregoing dismissal The reason for the consent of the Attorney General is that the
dismissal is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED 2012 ---- shy KAMALA D HARRIS Attorney General of California BRIAN V FRANKEL Supervising Deputy Attorney General
LORA FOX MARTIN Deputy Attorney General
Attorneys for the STATE OF CALIFORNIA
IT IS SO ORDERED
This ____ day of _____ 2012
UNITED STATES DISTRICT JUDGE
28
drafted by all Parties to this Agreement and therefore shall not be construed against any Party for
reasons of drafting
22 Complete Agreement This Agreement constitutes the entire agreement of the
Parties with respect to the subject matter of this Agreement and may not be modified amended
or terminated except by a written agreement signed by the Parties specifically referring to this
Agreement and its relevant portions
23 The SCAN Parties Successors etc This Agreement is binding on the SCAN
Parties respective successors transferees and assigns
24 Relators Successors etc This Agreement is binding on Relators successors
transferees heirs and assigns
25 Disclosure All Parties consent to the Governments disclosure of this Agreement
and information about this Agreement to the public
26 Headings The headings in this Agreement are for convenience only do not
constitute a part of this Agreement and shall not limit or affect any of its provisions
27 Capacity to Execute The undersigned counsel represent and warrant that they are
fully authorized to execute this Agreement on behalf of the persons and entities indicated below
The Relator represents that he has the full power authority and competence necessary to enter
into this Agreement
28 Counterparts and Facsimiles This Agreement may be executed in counterparts
each of which constitutes an original and all of which constitute one and the same Agreement
Facsimiles of signatures shall constitute acceptable binding signatures for purposes of this
Agreement
16
29 Effective Date This Agreement is effective on the date of signature of the last
signatory to the Agreement (Effective Date of this Agreement)
In Witness Whereof the Parties through their duly authorized representatives hereunder
set their hands
THE UNITED STATES OF AMERICA
DATED WQ_Qf)_
DATED ~Itk)2shy
DATED_____
Assistant United States Attorney Central District of California
JOHN E LEE Assistant United States Attorney Central District of California
BY __________________
GREGORY E DEMSKE Chief Counsel to the Inspector General Office of Counsel to the Inspector General Office of Inspector General United States Department of Health and Human Services
17
29 Effective Date This Agreement is effective on the date of signature of the last
signatory to the Agreement (Effective Date ofthis Agreement)
In Witness Whereof the Parties through their duly authorized representatives hereunder
set their hands
DATED_____
DATED_____
DATED~
THE UNITED STAT_ES OF AMERlCA
BY ___________________ SUSAN R HERSHMAN Assistant United States Attorney Central District of California
BY -------------------------shyJOHNELEE Assistant United States Attorney
Central District of~
BY __~~~==---~--------------------------GREGORY E DEMSKE Chief Counsel to the Inspector General Office of Counsel to the Inspector General Office of Inspector General United States Department of Health and Human Services
17
--------------
THE STATE OF CALIFORNIA
l 3o)l~ BY __L_~_J_y~----DATED I
B~ V FRANKEL Supervising Deputy Attorney General State of California
DATED---____ BY ___________________________
LORA FOX MARTIN Deputy Attorney General State of California
BY ___________________________DATED_____ TOBY BOUGLAS
Director Department ofHealth Care Services
SCANHEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP B DEFENDANTS
BY ____________________________DATED____ ______ of SCAN Health Plan
DATED____ BY of Senior Care Action Network
----~
BY _______________________ middot DATED-middotmiddot_____ ________ of SCAN Group
18
------
THE STATE OF CALIFORNIA
BY ____________________________DATED_____ BRIAN V FRANKEL Supervising Deputy Attorney General State of California
DATED 1fetz_ ~I B~~~
LO FOX MARTIN Deputy Attorney General State of California
BY _________________________DATED_____ TOBY DOUGLAS
Director Department of Health Care Services
SCANHEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP B DEFENDANTS
DATED____ BY ______________~---------------- of SCAN Health Plan
BYDATEDmiddot--- shy --------~-----of Senior Care Action Network
BY _________________________DATED---_____ _______ of SCAN Group
18
middot THE STATEOF CALIFORNIA
DATED_------- BY _____~-----~------------BRIAN V FRANKEL Supervising DeputY Attorney General State of California
DATED______ BY __~----~-----------------LORA FOX MARTIN Deputy Attorney General State of California
lt)iy middot~~ gt c
~~DOUGLAS 7) middot Director
Department ofHealth Care Services
SCAN HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP DEFENDANTS
BY ________________________~DATED____
--~--- of SCAN Health Plan
DATED____ BY __________~----------of Senior Care Action Network middot------
DATED_____ BY _______________________ _ _______ of scAN Groupmiddot
18
THE STATE OF CALIFORNIA
DATED_____ BY ____________________________
BRIANV FRANKEL Supervising Deputy Attorney General State of California
DATED_____ BY ____________________________
LORA FOX MARTIN Deputy Attorney General State of California
BY ___________________________DATED_____
TOBY DOUGLAS Director Department of Health Care Services
SCAN HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP DEFENDANTS
BY _______lC-----~-----r--~~----------~~ealthPian
BY
BY
18
DATED dz
R GER S GOLDMAN Latham amp Watkins counsel for SCAN Health Plan Senior Care Action Network ann Scan Group
JAM~S Mmiddot S)YQBEN -RELATOR
DATED____ BY ____~--~----~~--- JAMES M SWOSEN
Approved as to form and contellt
DATED_~~__ BY -------=~----------WILLIAM HANAGAMI
The Hanagami Law Firm A Professional Corporation Counsel fDr James M Swoben
19
DATED____ BY _______________ DAVID J SCHINDLER Latham amp Watk1ns Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
DATED_____ BY _______________________
ROGERS GOLDMAN Latham amp Watkins Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
JAMES M SWOBEN- RELATOR
DATED9-() to1---BYbull ~~ JAMES M SWOBEN
(
Approved as to form and content
L ~ ~middotmiddotmiddot- BY middott I amp -middot-- - ____ DATED 1 5t I C ( vbull 7 1bull lr-~A7AGAJ11 The Hanagami Law Firm A Professional Corporation Counsel for James M Swoben
DATED______ BY ABRAM J ZINBERG Counsel for James M Swoben
19
Exhibit 1
20
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 90012 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel [UNDER SEAL] ) NOTICE OF [SEALED] AND
) [PROPOSED]ORDERTHEREON Plaintiffs )
) [LODGED UNDER SEAL v ) pursuant to the False Claim Act
) 31 USC sect 3730(b)(2) and (3)] [UNDER SEAL] )
) [CAPTION ALSO MAY DESIGNATE (Caption continued on next page) ) OTHER DOCUMENTS FILED OR
) LODGED CONCURRENTLY]
21
Defendants )
22
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 900 12 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel ) JAMES M SWOBEN ) NOTICE OF DISMISSAL OF ALL
Plaintiffs ) CLAIMS AGAINST DEFENDANTS v ) SCAN HEALTH PLAN SENIOR
SCAN HEALTH PLAN a California ) CARE ACTION NETWORK AND corporation fka SENIOR CARE ) SCAN GROUP PURSUANT TO ACTION NETWORK SENIOR CARE ) SETTLEMENT AGREEMENT ACTION NETWORK a business entity) CONSENTS OF THE UNITED (Caption continued on next page) ) STATES AND STATE OF form unknown SCAN GROUP a ) CALIFORNIA ATTORNEYS
23
California corporation [NAMES OF ) GENERAL THERETO AND REMAINING DEFENDANTS ) [PROPOSED]ORDERTHEREON SEALED] )
Defendants ) [LODGED UNDER SEAL ) pursuant to the False Claim Act
31 USC sect 3730(b)(2) and (3)]
[CAPTION ALSO MAY DESIGNATE OTHER DOCUMENTS FILED OR LODGED CONCURRENTLY]
Pursuant to Rule 4l(a) of the Federal Rules of Civil Procedure and subject to
and in order to effectuate the settlement agreement among
the Relator James M Swoben (Relator) Defendants SCAN Health Plan
Senior Care Action Network and SCAN Group (collectively the SCAN
Defendants) and the United States of America and the State of California
(collectively the Governments)
the Relator hereby upon the Order of the Court herein
Dismisses all claims for relief and causes of action filed in the above-
captioned action against Defendants SCAN HEALTH PLAN SENIOR CARE
ACTION NETWORK and SCAN GROUP said dismissal being (a) with
prejudice as to the Relator (b) without prejudice to the United States of America as
to the Ninth Claim for Relief of the Third Amended Complaint and (c) with
prejudice to the Governments as to all other claims for relief and causes of action in
all Complaints filed in the above-captioned action against Defendants SCAN
HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP to
the extent that those claims for relief and causes of action are or purport to be filed
pursuant to the False Claims Act 31 USC sect 3729 et seq and the California False
Claims Act California Government Codesect 12650 et seq
Except that the Relator does not dismiss the Relators claim for a relators
share to be paid by the Governments pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(2) As to this claim the Relator
respectfully requests that the Court retain jurisdiction to determine if necessary the
relators share that the Relator should obtain pursuant to 31 USC sect 3730( d)(l) and
California Government Codesect 12652(g)(2) and
Except that the Relator does not dismiss the Relators claim for payment by
any and all of the SCAN Defendants to the Relator of expenses fees and costs
pursuant to 31 USC sect 3730(d)(l) and California Government Code
sect 12652(g)(8) As to this claim the Relator respectfully requests that the Court
retain jurisdiction to determine if necessary the appropriate expenses fees and
25
costs that the Relator should obtain pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(8)
Respectfully submitted
DATED _____ 2012 WILLIAM HANAGAMI ESQ The Hanagami Law Firm
ABRAM J ZINBERG ESQ Attorney at Law
WILLIAM HANAGAMI ESQ Attorneys for Relator JAMES M SWOBEN
26
CONSENT OF THE ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA
Pursuant to 31 USC sect 3730(b )(1) the Attorney General of the United
States of America by and through the undersigned consents to the foregoing
dismissal The reason for the consent of the Attorney General is that the dismissal
is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED _____ 2012 ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section
JOHN E LEE Assistant United States Attorney
Attorneys for the UNITED STATES OF AMERICA
CONSENT OF THE ATTORNEY GENERAL
OF THE STATE OF CALIFORNIA
Pursuant to California Government Codesect 12652(c)(1) the Attorney
General of the State of California by and through the undersigned consents to the
foregoing dismissal The reason for the consent of the Attorney General is that the
dismissal is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED 2012 ---- shy KAMALA D HARRIS Attorney General of California BRIAN V FRANKEL Supervising Deputy Attorney General
LORA FOX MARTIN Deputy Attorney General
Attorneys for the STATE OF CALIFORNIA
IT IS SO ORDERED
This ____ day of _____ 2012
UNITED STATES DISTRICT JUDGE
28
29 Effective Date This Agreement is effective on the date of signature of the last
signatory to the Agreement (Effective Date of this Agreement)
In Witness Whereof the Parties through their duly authorized representatives hereunder
set their hands
THE UNITED STATES OF AMERICA
DATED WQ_Qf)_
DATED ~Itk)2shy
DATED_____
Assistant United States Attorney Central District of California
JOHN E LEE Assistant United States Attorney Central District of California
BY __________________
GREGORY E DEMSKE Chief Counsel to the Inspector General Office of Counsel to the Inspector General Office of Inspector General United States Department of Health and Human Services
17
29 Effective Date This Agreement is effective on the date of signature of the last
signatory to the Agreement (Effective Date ofthis Agreement)
In Witness Whereof the Parties through their duly authorized representatives hereunder
set their hands
DATED_____
DATED_____
DATED~
THE UNITED STAT_ES OF AMERlCA
BY ___________________ SUSAN R HERSHMAN Assistant United States Attorney Central District of California
BY -------------------------shyJOHNELEE Assistant United States Attorney
Central District of~
BY __~~~==---~--------------------------GREGORY E DEMSKE Chief Counsel to the Inspector General Office of Counsel to the Inspector General Office of Inspector General United States Department of Health and Human Services
17
--------------
THE STATE OF CALIFORNIA
l 3o)l~ BY __L_~_J_y~----DATED I
B~ V FRANKEL Supervising Deputy Attorney General State of California
DATED---____ BY ___________________________
LORA FOX MARTIN Deputy Attorney General State of California
BY ___________________________DATED_____ TOBY BOUGLAS
Director Department ofHealth Care Services
SCANHEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP B DEFENDANTS
BY ____________________________DATED____ ______ of SCAN Health Plan
DATED____ BY of Senior Care Action Network
----~
BY _______________________ middot DATED-middotmiddot_____ ________ of SCAN Group
18
------
THE STATE OF CALIFORNIA
BY ____________________________DATED_____ BRIAN V FRANKEL Supervising Deputy Attorney General State of California
DATED 1fetz_ ~I B~~~
LO FOX MARTIN Deputy Attorney General State of California
BY _________________________DATED_____ TOBY DOUGLAS
Director Department of Health Care Services
SCANHEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP B DEFENDANTS
DATED____ BY ______________~---------------- of SCAN Health Plan
BYDATEDmiddot--- shy --------~-----of Senior Care Action Network
BY _________________________DATED---_____ _______ of SCAN Group
18
middot THE STATEOF CALIFORNIA
DATED_------- BY _____~-----~------------BRIAN V FRANKEL Supervising DeputY Attorney General State of California
DATED______ BY __~----~-----------------LORA FOX MARTIN Deputy Attorney General State of California
lt)iy middot~~ gt c
~~DOUGLAS 7) middot Director
Department ofHealth Care Services
SCAN HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP DEFENDANTS
BY ________________________~DATED____
--~--- of SCAN Health Plan
DATED____ BY __________~----------of Senior Care Action Network middot------
DATED_____ BY _______________________ _ _______ of scAN Groupmiddot
18
THE STATE OF CALIFORNIA
DATED_____ BY ____________________________
BRIANV FRANKEL Supervising Deputy Attorney General State of California
DATED_____ BY ____________________________
LORA FOX MARTIN Deputy Attorney General State of California
BY ___________________________DATED_____
TOBY DOUGLAS Director Department of Health Care Services
SCAN HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP DEFENDANTS
BY _______lC-----~-----r--~~----------~~ealthPian
BY
BY
18
DATED dz
R GER S GOLDMAN Latham amp Watkins counsel for SCAN Health Plan Senior Care Action Network ann Scan Group
JAM~S Mmiddot S)YQBEN -RELATOR
DATED____ BY ____~--~----~~--- JAMES M SWOSEN
Approved as to form and contellt
DATED_~~__ BY -------=~----------WILLIAM HANAGAMI
The Hanagami Law Firm A Professional Corporation Counsel fDr James M Swoben
19
DATED____ BY _______________ DAVID J SCHINDLER Latham amp Watk1ns Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
DATED_____ BY _______________________
ROGERS GOLDMAN Latham amp Watkins Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
JAMES M SWOBEN- RELATOR
DATED9-() to1---BYbull ~~ JAMES M SWOBEN
(
Approved as to form and content
L ~ ~middotmiddotmiddot- BY middott I amp -middot-- - ____ DATED 1 5t I C ( vbull 7 1bull lr-~A7AGAJ11 The Hanagami Law Firm A Professional Corporation Counsel for James M Swoben
DATED______ BY ABRAM J ZINBERG Counsel for James M Swoben
19
Exhibit 1
20
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 90012 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel [UNDER SEAL] ) NOTICE OF [SEALED] AND
) [PROPOSED]ORDERTHEREON Plaintiffs )
) [LODGED UNDER SEAL v ) pursuant to the False Claim Act
) 31 USC sect 3730(b)(2) and (3)] [UNDER SEAL] )
) [CAPTION ALSO MAY DESIGNATE (Caption continued on next page) ) OTHER DOCUMENTS FILED OR
) LODGED CONCURRENTLY]
21
Defendants )
22
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 900 12 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel ) JAMES M SWOBEN ) NOTICE OF DISMISSAL OF ALL
Plaintiffs ) CLAIMS AGAINST DEFENDANTS v ) SCAN HEALTH PLAN SENIOR
SCAN HEALTH PLAN a California ) CARE ACTION NETWORK AND corporation fka SENIOR CARE ) SCAN GROUP PURSUANT TO ACTION NETWORK SENIOR CARE ) SETTLEMENT AGREEMENT ACTION NETWORK a business entity) CONSENTS OF THE UNITED (Caption continued on next page) ) STATES AND STATE OF form unknown SCAN GROUP a ) CALIFORNIA ATTORNEYS
23
California corporation [NAMES OF ) GENERAL THERETO AND REMAINING DEFENDANTS ) [PROPOSED]ORDERTHEREON SEALED] )
Defendants ) [LODGED UNDER SEAL ) pursuant to the False Claim Act
31 USC sect 3730(b)(2) and (3)]
[CAPTION ALSO MAY DESIGNATE OTHER DOCUMENTS FILED OR LODGED CONCURRENTLY]
Pursuant to Rule 4l(a) of the Federal Rules of Civil Procedure and subject to
and in order to effectuate the settlement agreement among
the Relator James M Swoben (Relator) Defendants SCAN Health Plan
Senior Care Action Network and SCAN Group (collectively the SCAN
Defendants) and the United States of America and the State of California
(collectively the Governments)
the Relator hereby upon the Order of the Court herein
Dismisses all claims for relief and causes of action filed in the above-
captioned action against Defendants SCAN HEALTH PLAN SENIOR CARE
ACTION NETWORK and SCAN GROUP said dismissal being (a) with
prejudice as to the Relator (b) without prejudice to the United States of America as
to the Ninth Claim for Relief of the Third Amended Complaint and (c) with
prejudice to the Governments as to all other claims for relief and causes of action in
all Complaints filed in the above-captioned action against Defendants SCAN
HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP to
the extent that those claims for relief and causes of action are or purport to be filed
pursuant to the False Claims Act 31 USC sect 3729 et seq and the California False
Claims Act California Government Codesect 12650 et seq
Except that the Relator does not dismiss the Relators claim for a relators
share to be paid by the Governments pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(2) As to this claim the Relator
respectfully requests that the Court retain jurisdiction to determine if necessary the
relators share that the Relator should obtain pursuant to 31 USC sect 3730( d)(l) and
California Government Codesect 12652(g)(2) and
Except that the Relator does not dismiss the Relators claim for payment by
any and all of the SCAN Defendants to the Relator of expenses fees and costs
pursuant to 31 USC sect 3730(d)(l) and California Government Code
sect 12652(g)(8) As to this claim the Relator respectfully requests that the Court
retain jurisdiction to determine if necessary the appropriate expenses fees and
25
costs that the Relator should obtain pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(8)
Respectfully submitted
DATED _____ 2012 WILLIAM HANAGAMI ESQ The Hanagami Law Firm
ABRAM J ZINBERG ESQ Attorney at Law
WILLIAM HANAGAMI ESQ Attorneys for Relator JAMES M SWOBEN
26
CONSENT OF THE ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA
Pursuant to 31 USC sect 3730(b )(1) the Attorney General of the United
States of America by and through the undersigned consents to the foregoing
dismissal The reason for the consent of the Attorney General is that the dismissal
is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED _____ 2012 ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section
JOHN E LEE Assistant United States Attorney
Attorneys for the UNITED STATES OF AMERICA
CONSENT OF THE ATTORNEY GENERAL
OF THE STATE OF CALIFORNIA
Pursuant to California Government Codesect 12652(c)(1) the Attorney
General of the State of California by and through the undersigned consents to the
foregoing dismissal The reason for the consent of the Attorney General is that the
dismissal is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED 2012 ---- shy KAMALA D HARRIS Attorney General of California BRIAN V FRANKEL Supervising Deputy Attorney General
LORA FOX MARTIN Deputy Attorney General
Attorneys for the STATE OF CALIFORNIA
IT IS SO ORDERED
This ____ day of _____ 2012
UNITED STATES DISTRICT JUDGE
28
29 Effective Date This Agreement is effective on the date of signature of the last
signatory to the Agreement (Effective Date ofthis Agreement)
In Witness Whereof the Parties through their duly authorized representatives hereunder
set their hands
DATED_____
DATED_____
DATED~
THE UNITED STAT_ES OF AMERlCA
BY ___________________ SUSAN R HERSHMAN Assistant United States Attorney Central District of California
BY -------------------------shyJOHNELEE Assistant United States Attorney
Central District of~
BY __~~~==---~--------------------------GREGORY E DEMSKE Chief Counsel to the Inspector General Office of Counsel to the Inspector General Office of Inspector General United States Department of Health and Human Services
17
--------------
THE STATE OF CALIFORNIA
l 3o)l~ BY __L_~_J_y~----DATED I
B~ V FRANKEL Supervising Deputy Attorney General State of California
DATED---____ BY ___________________________
LORA FOX MARTIN Deputy Attorney General State of California
BY ___________________________DATED_____ TOBY BOUGLAS
Director Department ofHealth Care Services
SCANHEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP B DEFENDANTS
BY ____________________________DATED____ ______ of SCAN Health Plan
DATED____ BY of Senior Care Action Network
----~
BY _______________________ middot DATED-middotmiddot_____ ________ of SCAN Group
18
------
THE STATE OF CALIFORNIA
BY ____________________________DATED_____ BRIAN V FRANKEL Supervising Deputy Attorney General State of California
DATED 1fetz_ ~I B~~~
LO FOX MARTIN Deputy Attorney General State of California
BY _________________________DATED_____ TOBY DOUGLAS
Director Department of Health Care Services
SCANHEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP B DEFENDANTS
DATED____ BY ______________~---------------- of SCAN Health Plan
BYDATEDmiddot--- shy --------~-----of Senior Care Action Network
BY _________________________DATED---_____ _______ of SCAN Group
18
middot THE STATEOF CALIFORNIA
DATED_------- BY _____~-----~------------BRIAN V FRANKEL Supervising DeputY Attorney General State of California
DATED______ BY __~----~-----------------LORA FOX MARTIN Deputy Attorney General State of California
lt)iy middot~~ gt c
~~DOUGLAS 7) middot Director
Department ofHealth Care Services
SCAN HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP DEFENDANTS
BY ________________________~DATED____
--~--- of SCAN Health Plan
DATED____ BY __________~----------of Senior Care Action Network middot------
DATED_____ BY _______________________ _ _______ of scAN Groupmiddot
18
THE STATE OF CALIFORNIA
DATED_____ BY ____________________________
BRIANV FRANKEL Supervising Deputy Attorney General State of California
DATED_____ BY ____________________________
LORA FOX MARTIN Deputy Attorney General State of California
BY ___________________________DATED_____
TOBY DOUGLAS Director Department of Health Care Services
SCAN HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP DEFENDANTS
BY _______lC-----~-----r--~~----------~~ealthPian
BY
BY
18
DATED dz
R GER S GOLDMAN Latham amp Watkins counsel for SCAN Health Plan Senior Care Action Network ann Scan Group
JAM~S Mmiddot S)YQBEN -RELATOR
DATED____ BY ____~--~----~~--- JAMES M SWOSEN
Approved as to form and contellt
DATED_~~__ BY -------=~----------WILLIAM HANAGAMI
The Hanagami Law Firm A Professional Corporation Counsel fDr James M Swoben
19
DATED____ BY _______________ DAVID J SCHINDLER Latham amp Watk1ns Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
DATED_____ BY _______________________
ROGERS GOLDMAN Latham amp Watkins Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
JAMES M SWOBEN- RELATOR
DATED9-() to1---BYbull ~~ JAMES M SWOBEN
(
Approved as to form and content
L ~ ~middotmiddotmiddot- BY middott I amp -middot-- - ____ DATED 1 5t I C ( vbull 7 1bull lr-~A7AGAJ11 The Hanagami Law Firm A Professional Corporation Counsel for James M Swoben
DATED______ BY ABRAM J ZINBERG Counsel for James M Swoben
19
Exhibit 1
20
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 90012 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel [UNDER SEAL] ) NOTICE OF [SEALED] AND
) [PROPOSED]ORDERTHEREON Plaintiffs )
) [LODGED UNDER SEAL v ) pursuant to the False Claim Act
) 31 USC sect 3730(b)(2) and (3)] [UNDER SEAL] )
) [CAPTION ALSO MAY DESIGNATE (Caption continued on next page) ) OTHER DOCUMENTS FILED OR
) LODGED CONCURRENTLY]
21
Defendants )
22
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 900 12 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel ) JAMES M SWOBEN ) NOTICE OF DISMISSAL OF ALL
Plaintiffs ) CLAIMS AGAINST DEFENDANTS v ) SCAN HEALTH PLAN SENIOR
SCAN HEALTH PLAN a California ) CARE ACTION NETWORK AND corporation fka SENIOR CARE ) SCAN GROUP PURSUANT TO ACTION NETWORK SENIOR CARE ) SETTLEMENT AGREEMENT ACTION NETWORK a business entity) CONSENTS OF THE UNITED (Caption continued on next page) ) STATES AND STATE OF form unknown SCAN GROUP a ) CALIFORNIA ATTORNEYS
23
California corporation [NAMES OF ) GENERAL THERETO AND REMAINING DEFENDANTS ) [PROPOSED]ORDERTHEREON SEALED] )
Defendants ) [LODGED UNDER SEAL ) pursuant to the False Claim Act
31 USC sect 3730(b)(2) and (3)]
[CAPTION ALSO MAY DESIGNATE OTHER DOCUMENTS FILED OR LODGED CONCURRENTLY]
Pursuant to Rule 4l(a) of the Federal Rules of Civil Procedure and subject to
and in order to effectuate the settlement agreement among
the Relator James M Swoben (Relator) Defendants SCAN Health Plan
Senior Care Action Network and SCAN Group (collectively the SCAN
Defendants) and the United States of America and the State of California
(collectively the Governments)
the Relator hereby upon the Order of the Court herein
Dismisses all claims for relief and causes of action filed in the above-
captioned action against Defendants SCAN HEALTH PLAN SENIOR CARE
ACTION NETWORK and SCAN GROUP said dismissal being (a) with
prejudice as to the Relator (b) without prejudice to the United States of America as
to the Ninth Claim for Relief of the Third Amended Complaint and (c) with
prejudice to the Governments as to all other claims for relief and causes of action in
all Complaints filed in the above-captioned action against Defendants SCAN
HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP to
the extent that those claims for relief and causes of action are or purport to be filed
pursuant to the False Claims Act 31 USC sect 3729 et seq and the California False
Claims Act California Government Codesect 12650 et seq
Except that the Relator does not dismiss the Relators claim for a relators
share to be paid by the Governments pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(2) As to this claim the Relator
respectfully requests that the Court retain jurisdiction to determine if necessary the
relators share that the Relator should obtain pursuant to 31 USC sect 3730( d)(l) and
California Government Codesect 12652(g)(2) and
Except that the Relator does not dismiss the Relators claim for payment by
any and all of the SCAN Defendants to the Relator of expenses fees and costs
pursuant to 31 USC sect 3730(d)(l) and California Government Code
sect 12652(g)(8) As to this claim the Relator respectfully requests that the Court
retain jurisdiction to determine if necessary the appropriate expenses fees and
25
costs that the Relator should obtain pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(8)
Respectfully submitted
DATED _____ 2012 WILLIAM HANAGAMI ESQ The Hanagami Law Firm
ABRAM J ZINBERG ESQ Attorney at Law
WILLIAM HANAGAMI ESQ Attorneys for Relator JAMES M SWOBEN
26
CONSENT OF THE ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA
Pursuant to 31 USC sect 3730(b )(1) the Attorney General of the United
States of America by and through the undersigned consents to the foregoing
dismissal The reason for the consent of the Attorney General is that the dismissal
is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED _____ 2012 ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section
JOHN E LEE Assistant United States Attorney
Attorneys for the UNITED STATES OF AMERICA
CONSENT OF THE ATTORNEY GENERAL
OF THE STATE OF CALIFORNIA
Pursuant to California Government Codesect 12652(c)(1) the Attorney
General of the State of California by and through the undersigned consents to the
foregoing dismissal The reason for the consent of the Attorney General is that the
dismissal is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED 2012 ---- shy KAMALA D HARRIS Attorney General of California BRIAN V FRANKEL Supervising Deputy Attorney General
LORA FOX MARTIN Deputy Attorney General
Attorneys for the STATE OF CALIFORNIA
IT IS SO ORDERED
This ____ day of _____ 2012
UNITED STATES DISTRICT JUDGE
28
--------------
THE STATE OF CALIFORNIA
l 3o)l~ BY __L_~_J_y~----DATED I
B~ V FRANKEL Supervising Deputy Attorney General State of California
DATED---____ BY ___________________________
LORA FOX MARTIN Deputy Attorney General State of California
BY ___________________________DATED_____ TOBY BOUGLAS
Director Department ofHealth Care Services
SCANHEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP B DEFENDANTS
BY ____________________________DATED____ ______ of SCAN Health Plan
DATED____ BY of Senior Care Action Network
----~
BY _______________________ middot DATED-middotmiddot_____ ________ of SCAN Group
18
------
THE STATE OF CALIFORNIA
BY ____________________________DATED_____ BRIAN V FRANKEL Supervising Deputy Attorney General State of California
DATED 1fetz_ ~I B~~~
LO FOX MARTIN Deputy Attorney General State of California
BY _________________________DATED_____ TOBY DOUGLAS
Director Department of Health Care Services
SCANHEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP B DEFENDANTS
DATED____ BY ______________~---------------- of SCAN Health Plan
BYDATEDmiddot--- shy --------~-----of Senior Care Action Network
BY _________________________DATED---_____ _______ of SCAN Group
18
middot THE STATEOF CALIFORNIA
DATED_------- BY _____~-----~------------BRIAN V FRANKEL Supervising DeputY Attorney General State of California
DATED______ BY __~----~-----------------LORA FOX MARTIN Deputy Attorney General State of California
lt)iy middot~~ gt c
~~DOUGLAS 7) middot Director
Department ofHealth Care Services
SCAN HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP DEFENDANTS
BY ________________________~DATED____
--~--- of SCAN Health Plan
DATED____ BY __________~----------of Senior Care Action Network middot------
DATED_____ BY _______________________ _ _______ of scAN Groupmiddot
18
THE STATE OF CALIFORNIA
DATED_____ BY ____________________________
BRIANV FRANKEL Supervising Deputy Attorney General State of California
DATED_____ BY ____________________________
LORA FOX MARTIN Deputy Attorney General State of California
BY ___________________________DATED_____
TOBY DOUGLAS Director Department of Health Care Services
SCAN HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP DEFENDANTS
BY _______lC-----~-----r--~~----------~~ealthPian
BY
BY
18
DATED dz
R GER S GOLDMAN Latham amp Watkins counsel for SCAN Health Plan Senior Care Action Network ann Scan Group
JAM~S Mmiddot S)YQBEN -RELATOR
DATED____ BY ____~--~----~~--- JAMES M SWOSEN
Approved as to form and contellt
DATED_~~__ BY -------=~----------WILLIAM HANAGAMI
The Hanagami Law Firm A Professional Corporation Counsel fDr James M Swoben
19
DATED____ BY _______________ DAVID J SCHINDLER Latham amp Watk1ns Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
DATED_____ BY _______________________
ROGERS GOLDMAN Latham amp Watkins Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
JAMES M SWOBEN- RELATOR
DATED9-() to1---BYbull ~~ JAMES M SWOBEN
(
Approved as to form and content
L ~ ~middotmiddotmiddot- BY middott I amp -middot-- - ____ DATED 1 5t I C ( vbull 7 1bull lr-~A7AGAJ11 The Hanagami Law Firm A Professional Corporation Counsel for James M Swoben
DATED______ BY ABRAM J ZINBERG Counsel for James M Swoben
19
Exhibit 1
20
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 90012 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel [UNDER SEAL] ) NOTICE OF [SEALED] AND
) [PROPOSED]ORDERTHEREON Plaintiffs )
) [LODGED UNDER SEAL v ) pursuant to the False Claim Act
) 31 USC sect 3730(b)(2) and (3)] [UNDER SEAL] )
) [CAPTION ALSO MAY DESIGNATE (Caption continued on next page) ) OTHER DOCUMENTS FILED OR
) LODGED CONCURRENTLY]
21
Defendants )
22
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 900 12 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel ) JAMES M SWOBEN ) NOTICE OF DISMISSAL OF ALL
Plaintiffs ) CLAIMS AGAINST DEFENDANTS v ) SCAN HEALTH PLAN SENIOR
SCAN HEALTH PLAN a California ) CARE ACTION NETWORK AND corporation fka SENIOR CARE ) SCAN GROUP PURSUANT TO ACTION NETWORK SENIOR CARE ) SETTLEMENT AGREEMENT ACTION NETWORK a business entity) CONSENTS OF THE UNITED (Caption continued on next page) ) STATES AND STATE OF form unknown SCAN GROUP a ) CALIFORNIA ATTORNEYS
23
California corporation [NAMES OF ) GENERAL THERETO AND REMAINING DEFENDANTS ) [PROPOSED]ORDERTHEREON SEALED] )
Defendants ) [LODGED UNDER SEAL ) pursuant to the False Claim Act
31 USC sect 3730(b)(2) and (3)]
[CAPTION ALSO MAY DESIGNATE OTHER DOCUMENTS FILED OR LODGED CONCURRENTLY]
Pursuant to Rule 4l(a) of the Federal Rules of Civil Procedure and subject to
and in order to effectuate the settlement agreement among
the Relator James M Swoben (Relator) Defendants SCAN Health Plan
Senior Care Action Network and SCAN Group (collectively the SCAN
Defendants) and the United States of America and the State of California
(collectively the Governments)
the Relator hereby upon the Order of the Court herein
Dismisses all claims for relief and causes of action filed in the above-
captioned action against Defendants SCAN HEALTH PLAN SENIOR CARE
ACTION NETWORK and SCAN GROUP said dismissal being (a) with
prejudice as to the Relator (b) without prejudice to the United States of America as
to the Ninth Claim for Relief of the Third Amended Complaint and (c) with
prejudice to the Governments as to all other claims for relief and causes of action in
all Complaints filed in the above-captioned action against Defendants SCAN
HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP to
the extent that those claims for relief and causes of action are or purport to be filed
pursuant to the False Claims Act 31 USC sect 3729 et seq and the California False
Claims Act California Government Codesect 12650 et seq
Except that the Relator does not dismiss the Relators claim for a relators
share to be paid by the Governments pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(2) As to this claim the Relator
respectfully requests that the Court retain jurisdiction to determine if necessary the
relators share that the Relator should obtain pursuant to 31 USC sect 3730( d)(l) and
California Government Codesect 12652(g)(2) and
Except that the Relator does not dismiss the Relators claim for payment by
any and all of the SCAN Defendants to the Relator of expenses fees and costs
pursuant to 31 USC sect 3730(d)(l) and California Government Code
sect 12652(g)(8) As to this claim the Relator respectfully requests that the Court
retain jurisdiction to determine if necessary the appropriate expenses fees and
25
costs that the Relator should obtain pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(8)
Respectfully submitted
DATED _____ 2012 WILLIAM HANAGAMI ESQ The Hanagami Law Firm
ABRAM J ZINBERG ESQ Attorney at Law
WILLIAM HANAGAMI ESQ Attorneys for Relator JAMES M SWOBEN
26
CONSENT OF THE ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA
Pursuant to 31 USC sect 3730(b )(1) the Attorney General of the United
States of America by and through the undersigned consents to the foregoing
dismissal The reason for the consent of the Attorney General is that the dismissal
is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED _____ 2012 ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section
JOHN E LEE Assistant United States Attorney
Attorneys for the UNITED STATES OF AMERICA
CONSENT OF THE ATTORNEY GENERAL
OF THE STATE OF CALIFORNIA
Pursuant to California Government Codesect 12652(c)(1) the Attorney
General of the State of California by and through the undersigned consents to the
foregoing dismissal The reason for the consent of the Attorney General is that the
dismissal is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED 2012 ---- shy KAMALA D HARRIS Attorney General of California BRIAN V FRANKEL Supervising Deputy Attorney General
LORA FOX MARTIN Deputy Attorney General
Attorneys for the STATE OF CALIFORNIA
IT IS SO ORDERED
This ____ day of _____ 2012
UNITED STATES DISTRICT JUDGE
28
------
THE STATE OF CALIFORNIA
BY ____________________________DATED_____ BRIAN V FRANKEL Supervising Deputy Attorney General State of California
DATED 1fetz_ ~I B~~~
LO FOX MARTIN Deputy Attorney General State of California
BY _________________________DATED_____ TOBY DOUGLAS
Director Department of Health Care Services
SCANHEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP B DEFENDANTS
DATED____ BY ______________~---------------- of SCAN Health Plan
BYDATEDmiddot--- shy --------~-----of Senior Care Action Network
BY _________________________DATED---_____ _______ of SCAN Group
18
middot THE STATEOF CALIFORNIA
DATED_------- BY _____~-----~------------BRIAN V FRANKEL Supervising DeputY Attorney General State of California
DATED______ BY __~----~-----------------LORA FOX MARTIN Deputy Attorney General State of California
lt)iy middot~~ gt c
~~DOUGLAS 7) middot Director
Department ofHealth Care Services
SCAN HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP DEFENDANTS
BY ________________________~DATED____
--~--- of SCAN Health Plan
DATED____ BY __________~----------of Senior Care Action Network middot------
DATED_____ BY _______________________ _ _______ of scAN Groupmiddot
18
THE STATE OF CALIFORNIA
DATED_____ BY ____________________________
BRIANV FRANKEL Supervising Deputy Attorney General State of California
DATED_____ BY ____________________________
LORA FOX MARTIN Deputy Attorney General State of California
BY ___________________________DATED_____
TOBY DOUGLAS Director Department of Health Care Services
SCAN HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP DEFENDANTS
BY _______lC-----~-----r--~~----------~~ealthPian
BY
BY
18
DATED dz
R GER S GOLDMAN Latham amp Watkins counsel for SCAN Health Plan Senior Care Action Network ann Scan Group
JAM~S Mmiddot S)YQBEN -RELATOR
DATED____ BY ____~--~----~~--- JAMES M SWOSEN
Approved as to form and contellt
DATED_~~__ BY -------=~----------WILLIAM HANAGAMI
The Hanagami Law Firm A Professional Corporation Counsel fDr James M Swoben
19
DATED____ BY _______________ DAVID J SCHINDLER Latham amp Watk1ns Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
DATED_____ BY _______________________
ROGERS GOLDMAN Latham amp Watkins Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
JAMES M SWOBEN- RELATOR
DATED9-() to1---BYbull ~~ JAMES M SWOBEN
(
Approved as to form and content
L ~ ~middotmiddotmiddot- BY middott I amp -middot-- - ____ DATED 1 5t I C ( vbull 7 1bull lr-~A7AGAJ11 The Hanagami Law Firm A Professional Corporation Counsel for James M Swoben
DATED______ BY ABRAM J ZINBERG Counsel for James M Swoben
19
Exhibit 1
20
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 90012 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel [UNDER SEAL] ) NOTICE OF [SEALED] AND
) [PROPOSED]ORDERTHEREON Plaintiffs )
) [LODGED UNDER SEAL v ) pursuant to the False Claim Act
) 31 USC sect 3730(b)(2) and (3)] [UNDER SEAL] )
) [CAPTION ALSO MAY DESIGNATE (Caption continued on next page) ) OTHER DOCUMENTS FILED OR
) LODGED CONCURRENTLY]
21
Defendants )
22
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 900 12 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel ) JAMES M SWOBEN ) NOTICE OF DISMISSAL OF ALL
Plaintiffs ) CLAIMS AGAINST DEFENDANTS v ) SCAN HEALTH PLAN SENIOR
SCAN HEALTH PLAN a California ) CARE ACTION NETWORK AND corporation fka SENIOR CARE ) SCAN GROUP PURSUANT TO ACTION NETWORK SENIOR CARE ) SETTLEMENT AGREEMENT ACTION NETWORK a business entity) CONSENTS OF THE UNITED (Caption continued on next page) ) STATES AND STATE OF form unknown SCAN GROUP a ) CALIFORNIA ATTORNEYS
23
California corporation [NAMES OF ) GENERAL THERETO AND REMAINING DEFENDANTS ) [PROPOSED]ORDERTHEREON SEALED] )
Defendants ) [LODGED UNDER SEAL ) pursuant to the False Claim Act
31 USC sect 3730(b)(2) and (3)]
[CAPTION ALSO MAY DESIGNATE OTHER DOCUMENTS FILED OR LODGED CONCURRENTLY]
Pursuant to Rule 4l(a) of the Federal Rules of Civil Procedure and subject to
and in order to effectuate the settlement agreement among
the Relator James M Swoben (Relator) Defendants SCAN Health Plan
Senior Care Action Network and SCAN Group (collectively the SCAN
Defendants) and the United States of America and the State of California
(collectively the Governments)
the Relator hereby upon the Order of the Court herein
Dismisses all claims for relief and causes of action filed in the above-
captioned action against Defendants SCAN HEALTH PLAN SENIOR CARE
ACTION NETWORK and SCAN GROUP said dismissal being (a) with
prejudice as to the Relator (b) without prejudice to the United States of America as
to the Ninth Claim for Relief of the Third Amended Complaint and (c) with
prejudice to the Governments as to all other claims for relief and causes of action in
all Complaints filed in the above-captioned action against Defendants SCAN
HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP to
the extent that those claims for relief and causes of action are or purport to be filed
pursuant to the False Claims Act 31 USC sect 3729 et seq and the California False
Claims Act California Government Codesect 12650 et seq
Except that the Relator does not dismiss the Relators claim for a relators
share to be paid by the Governments pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(2) As to this claim the Relator
respectfully requests that the Court retain jurisdiction to determine if necessary the
relators share that the Relator should obtain pursuant to 31 USC sect 3730( d)(l) and
California Government Codesect 12652(g)(2) and
Except that the Relator does not dismiss the Relators claim for payment by
any and all of the SCAN Defendants to the Relator of expenses fees and costs
pursuant to 31 USC sect 3730(d)(l) and California Government Code
sect 12652(g)(8) As to this claim the Relator respectfully requests that the Court
retain jurisdiction to determine if necessary the appropriate expenses fees and
25
costs that the Relator should obtain pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(8)
Respectfully submitted
DATED _____ 2012 WILLIAM HANAGAMI ESQ The Hanagami Law Firm
ABRAM J ZINBERG ESQ Attorney at Law
WILLIAM HANAGAMI ESQ Attorneys for Relator JAMES M SWOBEN
26
CONSENT OF THE ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA
Pursuant to 31 USC sect 3730(b )(1) the Attorney General of the United
States of America by and through the undersigned consents to the foregoing
dismissal The reason for the consent of the Attorney General is that the dismissal
is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED _____ 2012 ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section
JOHN E LEE Assistant United States Attorney
Attorneys for the UNITED STATES OF AMERICA
CONSENT OF THE ATTORNEY GENERAL
OF THE STATE OF CALIFORNIA
Pursuant to California Government Codesect 12652(c)(1) the Attorney
General of the State of California by and through the undersigned consents to the
foregoing dismissal The reason for the consent of the Attorney General is that the
dismissal is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED 2012 ---- shy KAMALA D HARRIS Attorney General of California BRIAN V FRANKEL Supervising Deputy Attorney General
LORA FOX MARTIN Deputy Attorney General
Attorneys for the STATE OF CALIFORNIA
IT IS SO ORDERED
This ____ day of _____ 2012
UNITED STATES DISTRICT JUDGE
28
middot THE STATEOF CALIFORNIA
DATED_------- BY _____~-----~------------BRIAN V FRANKEL Supervising DeputY Attorney General State of California
DATED______ BY __~----~-----------------LORA FOX MARTIN Deputy Attorney General State of California
lt)iy middot~~ gt c
~~DOUGLAS 7) middot Director
Department ofHealth Care Services
SCAN HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP DEFENDANTS
BY ________________________~DATED____
--~--- of SCAN Health Plan
DATED____ BY __________~----------of Senior Care Action Network middot------
DATED_____ BY _______________________ _ _______ of scAN Groupmiddot
18
THE STATE OF CALIFORNIA
DATED_____ BY ____________________________
BRIANV FRANKEL Supervising Deputy Attorney General State of California
DATED_____ BY ____________________________
LORA FOX MARTIN Deputy Attorney General State of California
BY ___________________________DATED_____
TOBY DOUGLAS Director Department of Health Care Services
SCAN HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP DEFENDANTS
BY _______lC-----~-----r--~~----------~~ealthPian
BY
BY
18
DATED dz
R GER S GOLDMAN Latham amp Watkins counsel for SCAN Health Plan Senior Care Action Network ann Scan Group
JAM~S Mmiddot S)YQBEN -RELATOR
DATED____ BY ____~--~----~~--- JAMES M SWOSEN
Approved as to form and contellt
DATED_~~__ BY -------=~----------WILLIAM HANAGAMI
The Hanagami Law Firm A Professional Corporation Counsel fDr James M Swoben
19
DATED____ BY _______________ DAVID J SCHINDLER Latham amp Watk1ns Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
DATED_____ BY _______________________
ROGERS GOLDMAN Latham amp Watkins Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
JAMES M SWOBEN- RELATOR
DATED9-() to1---BYbull ~~ JAMES M SWOBEN
(
Approved as to form and content
L ~ ~middotmiddotmiddot- BY middott I amp -middot-- - ____ DATED 1 5t I C ( vbull 7 1bull lr-~A7AGAJ11 The Hanagami Law Firm A Professional Corporation Counsel for James M Swoben
DATED______ BY ABRAM J ZINBERG Counsel for James M Swoben
19
Exhibit 1
20
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 90012 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel [UNDER SEAL] ) NOTICE OF [SEALED] AND
) [PROPOSED]ORDERTHEREON Plaintiffs )
) [LODGED UNDER SEAL v ) pursuant to the False Claim Act
) 31 USC sect 3730(b)(2) and (3)] [UNDER SEAL] )
) [CAPTION ALSO MAY DESIGNATE (Caption continued on next page) ) OTHER DOCUMENTS FILED OR
) LODGED CONCURRENTLY]
21
Defendants )
22
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 900 12 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel ) JAMES M SWOBEN ) NOTICE OF DISMISSAL OF ALL
Plaintiffs ) CLAIMS AGAINST DEFENDANTS v ) SCAN HEALTH PLAN SENIOR
SCAN HEALTH PLAN a California ) CARE ACTION NETWORK AND corporation fka SENIOR CARE ) SCAN GROUP PURSUANT TO ACTION NETWORK SENIOR CARE ) SETTLEMENT AGREEMENT ACTION NETWORK a business entity) CONSENTS OF THE UNITED (Caption continued on next page) ) STATES AND STATE OF form unknown SCAN GROUP a ) CALIFORNIA ATTORNEYS
23
California corporation [NAMES OF ) GENERAL THERETO AND REMAINING DEFENDANTS ) [PROPOSED]ORDERTHEREON SEALED] )
Defendants ) [LODGED UNDER SEAL ) pursuant to the False Claim Act
31 USC sect 3730(b)(2) and (3)]
[CAPTION ALSO MAY DESIGNATE OTHER DOCUMENTS FILED OR LODGED CONCURRENTLY]
Pursuant to Rule 4l(a) of the Federal Rules of Civil Procedure and subject to
and in order to effectuate the settlement agreement among
the Relator James M Swoben (Relator) Defendants SCAN Health Plan
Senior Care Action Network and SCAN Group (collectively the SCAN
Defendants) and the United States of America and the State of California
(collectively the Governments)
the Relator hereby upon the Order of the Court herein
Dismisses all claims for relief and causes of action filed in the above-
captioned action against Defendants SCAN HEALTH PLAN SENIOR CARE
ACTION NETWORK and SCAN GROUP said dismissal being (a) with
prejudice as to the Relator (b) without prejudice to the United States of America as
to the Ninth Claim for Relief of the Third Amended Complaint and (c) with
prejudice to the Governments as to all other claims for relief and causes of action in
all Complaints filed in the above-captioned action against Defendants SCAN
HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP to
the extent that those claims for relief and causes of action are or purport to be filed
pursuant to the False Claims Act 31 USC sect 3729 et seq and the California False
Claims Act California Government Codesect 12650 et seq
Except that the Relator does not dismiss the Relators claim for a relators
share to be paid by the Governments pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(2) As to this claim the Relator
respectfully requests that the Court retain jurisdiction to determine if necessary the
relators share that the Relator should obtain pursuant to 31 USC sect 3730( d)(l) and
California Government Codesect 12652(g)(2) and
Except that the Relator does not dismiss the Relators claim for payment by
any and all of the SCAN Defendants to the Relator of expenses fees and costs
pursuant to 31 USC sect 3730(d)(l) and California Government Code
sect 12652(g)(8) As to this claim the Relator respectfully requests that the Court
retain jurisdiction to determine if necessary the appropriate expenses fees and
25
costs that the Relator should obtain pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(8)
Respectfully submitted
DATED _____ 2012 WILLIAM HANAGAMI ESQ The Hanagami Law Firm
ABRAM J ZINBERG ESQ Attorney at Law
WILLIAM HANAGAMI ESQ Attorneys for Relator JAMES M SWOBEN
26
CONSENT OF THE ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA
Pursuant to 31 USC sect 3730(b )(1) the Attorney General of the United
States of America by and through the undersigned consents to the foregoing
dismissal The reason for the consent of the Attorney General is that the dismissal
is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED _____ 2012 ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section
JOHN E LEE Assistant United States Attorney
Attorneys for the UNITED STATES OF AMERICA
CONSENT OF THE ATTORNEY GENERAL
OF THE STATE OF CALIFORNIA
Pursuant to California Government Codesect 12652(c)(1) the Attorney
General of the State of California by and through the undersigned consents to the
foregoing dismissal The reason for the consent of the Attorney General is that the
dismissal is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED 2012 ---- shy KAMALA D HARRIS Attorney General of California BRIAN V FRANKEL Supervising Deputy Attorney General
LORA FOX MARTIN Deputy Attorney General
Attorneys for the STATE OF CALIFORNIA
IT IS SO ORDERED
This ____ day of _____ 2012
UNITED STATES DISTRICT JUDGE
28
THE STATE OF CALIFORNIA
DATED_____ BY ____________________________
BRIANV FRANKEL Supervising Deputy Attorney General State of California
DATED_____ BY ____________________________
LORA FOX MARTIN Deputy Attorney General State of California
BY ___________________________DATED_____
TOBY DOUGLAS Director Department of Health Care Services
SCAN HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP DEFENDANTS
BY _______lC-----~-----r--~~----------~~ealthPian
BY
BY
18
DATED dz
R GER S GOLDMAN Latham amp Watkins counsel for SCAN Health Plan Senior Care Action Network ann Scan Group
JAM~S Mmiddot S)YQBEN -RELATOR
DATED____ BY ____~--~----~~--- JAMES M SWOSEN
Approved as to form and contellt
DATED_~~__ BY -------=~----------WILLIAM HANAGAMI
The Hanagami Law Firm A Professional Corporation Counsel fDr James M Swoben
19
DATED____ BY _______________ DAVID J SCHINDLER Latham amp Watk1ns Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
DATED_____ BY _______________________
ROGERS GOLDMAN Latham amp Watkins Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
JAMES M SWOBEN- RELATOR
DATED9-() to1---BYbull ~~ JAMES M SWOBEN
(
Approved as to form and content
L ~ ~middotmiddotmiddot- BY middott I amp -middot-- - ____ DATED 1 5t I C ( vbull 7 1bull lr-~A7AGAJ11 The Hanagami Law Firm A Professional Corporation Counsel for James M Swoben
DATED______ BY ABRAM J ZINBERG Counsel for James M Swoben
19
Exhibit 1
20
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 90012 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel [UNDER SEAL] ) NOTICE OF [SEALED] AND
) [PROPOSED]ORDERTHEREON Plaintiffs )
) [LODGED UNDER SEAL v ) pursuant to the False Claim Act
) 31 USC sect 3730(b)(2) and (3)] [UNDER SEAL] )
) [CAPTION ALSO MAY DESIGNATE (Caption continued on next page) ) OTHER DOCUMENTS FILED OR
) LODGED CONCURRENTLY]
21
Defendants )
22
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 900 12 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel ) JAMES M SWOBEN ) NOTICE OF DISMISSAL OF ALL
Plaintiffs ) CLAIMS AGAINST DEFENDANTS v ) SCAN HEALTH PLAN SENIOR
SCAN HEALTH PLAN a California ) CARE ACTION NETWORK AND corporation fka SENIOR CARE ) SCAN GROUP PURSUANT TO ACTION NETWORK SENIOR CARE ) SETTLEMENT AGREEMENT ACTION NETWORK a business entity) CONSENTS OF THE UNITED (Caption continued on next page) ) STATES AND STATE OF form unknown SCAN GROUP a ) CALIFORNIA ATTORNEYS
23
California corporation [NAMES OF ) GENERAL THERETO AND REMAINING DEFENDANTS ) [PROPOSED]ORDERTHEREON SEALED] )
Defendants ) [LODGED UNDER SEAL ) pursuant to the False Claim Act
31 USC sect 3730(b)(2) and (3)]
[CAPTION ALSO MAY DESIGNATE OTHER DOCUMENTS FILED OR LODGED CONCURRENTLY]
Pursuant to Rule 4l(a) of the Federal Rules of Civil Procedure and subject to
and in order to effectuate the settlement agreement among
the Relator James M Swoben (Relator) Defendants SCAN Health Plan
Senior Care Action Network and SCAN Group (collectively the SCAN
Defendants) and the United States of America and the State of California
(collectively the Governments)
the Relator hereby upon the Order of the Court herein
Dismisses all claims for relief and causes of action filed in the above-
captioned action against Defendants SCAN HEALTH PLAN SENIOR CARE
ACTION NETWORK and SCAN GROUP said dismissal being (a) with
prejudice as to the Relator (b) without prejudice to the United States of America as
to the Ninth Claim for Relief of the Third Amended Complaint and (c) with
prejudice to the Governments as to all other claims for relief and causes of action in
all Complaints filed in the above-captioned action against Defendants SCAN
HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP to
the extent that those claims for relief and causes of action are or purport to be filed
pursuant to the False Claims Act 31 USC sect 3729 et seq and the California False
Claims Act California Government Codesect 12650 et seq
Except that the Relator does not dismiss the Relators claim for a relators
share to be paid by the Governments pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(2) As to this claim the Relator
respectfully requests that the Court retain jurisdiction to determine if necessary the
relators share that the Relator should obtain pursuant to 31 USC sect 3730( d)(l) and
California Government Codesect 12652(g)(2) and
Except that the Relator does not dismiss the Relators claim for payment by
any and all of the SCAN Defendants to the Relator of expenses fees and costs
pursuant to 31 USC sect 3730(d)(l) and California Government Code
sect 12652(g)(8) As to this claim the Relator respectfully requests that the Court
retain jurisdiction to determine if necessary the appropriate expenses fees and
25
costs that the Relator should obtain pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(8)
Respectfully submitted
DATED _____ 2012 WILLIAM HANAGAMI ESQ The Hanagami Law Firm
ABRAM J ZINBERG ESQ Attorney at Law
WILLIAM HANAGAMI ESQ Attorneys for Relator JAMES M SWOBEN
26
CONSENT OF THE ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA
Pursuant to 31 USC sect 3730(b )(1) the Attorney General of the United
States of America by and through the undersigned consents to the foregoing
dismissal The reason for the consent of the Attorney General is that the dismissal
is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED _____ 2012 ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section
JOHN E LEE Assistant United States Attorney
Attorneys for the UNITED STATES OF AMERICA
CONSENT OF THE ATTORNEY GENERAL
OF THE STATE OF CALIFORNIA
Pursuant to California Government Codesect 12652(c)(1) the Attorney
General of the State of California by and through the undersigned consents to the
foregoing dismissal The reason for the consent of the Attorney General is that the
dismissal is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED 2012 ---- shy KAMALA D HARRIS Attorney General of California BRIAN V FRANKEL Supervising Deputy Attorney General
LORA FOX MARTIN Deputy Attorney General
Attorneys for the STATE OF CALIFORNIA
IT IS SO ORDERED
This ____ day of _____ 2012
UNITED STATES DISTRICT JUDGE
28
DATED dz
R GER S GOLDMAN Latham amp Watkins counsel for SCAN Health Plan Senior Care Action Network ann Scan Group
JAM~S Mmiddot S)YQBEN -RELATOR
DATED____ BY ____~--~----~~--- JAMES M SWOSEN
Approved as to form and contellt
DATED_~~__ BY -------=~----------WILLIAM HANAGAMI
The Hanagami Law Firm A Professional Corporation Counsel fDr James M Swoben
19
DATED____ BY _______________ DAVID J SCHINDLER Latham amp Watk1ns Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
DATED_____ BY _______________________
ROGERS GOLDMAN Latham amp Watkins Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
JAMES M SWOBEN- RELATOR
DATED9-() to1---BYbull ~~ JAMES M SWOBEN
(
Approved as to form and content
L ~ ~middotmiddotmiddot- BY middott I amp -middot-- - ____ DATED 1 5t I C ( vbull 7 1bull lr-~A7AGAJ11 The Hanagami Law Firm A Professional Corporation Counsel for James M Swoben
DATED______ BY ABRAM J ZINBERG Counsel for James M Swoben
19
Exhibit 1
20
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 90012 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel [UNDER SEAL] ) NOTICE OF [SEALED] AND
) [PROPOSED]ORDERTHEREON Plaintiffs )
) [LODGED UNDER SEAL v ) pursuant to the False Claim Act
) 31 USC sect 3730(b)(2) and (3)] [UNDER SEAL] )
) [CAPTION ALSO MAY DESIGNATE (Caption continued on next page) ) OTHER DOCUMENTS FILED OR
) LODGED CONCURRENTLY]
21
Defendants )
22
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 900 12 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel ) JAMES M SWOBEN ) NOTICE OF DISMISSAL OF ALL
Plaintiffs ) CLAIMS AGAINST DEFENDANTS v ) SCAN HEALTH PLAN SENIOR
SCAN HEALTH PLAN a California ) CARE ACTION NETWORK AND corporation fka SENIOR CARE ) SCAN GROUP PURSUANT TO ACTION NETWORK SENIOR CARE ) SETTLEMENT AGREEMENT ACTION NETWORK a business entity) CONSENTS OF THE UNITED (Caption continued on next page) ) STATES AND STATE OF form unknown SCAN GROUP a ) CALIFORNIA ATTORNEYS
23
California corporation [NAMES OF ) GENERAL THERETO AND REMAINING DEFENDANTS ) [PROPOSED]ORDERTHEREON SEALED] )
Defendants ) [LODGED UNDER SEAL ) pursuant to the False Claim Act
31 USC sect 3730(b)(2) and (3)]
[CAPTION ALSO MAY DESIGNATE OTHER DOCUMENTS FILED OR LODGED CONCURRENTLY]
Pursuant to Rule 4l(a) of the Federal Rules of Civil Procedure and subject to
and in order to effectuate the settlement agreement among
the Relator James M Swoben (Relator) Defendants SCAN Health Plan
Senior Care Action Network and SCAN Group (collectively the SCAN
Defendants) and the United States of America and the State of California
(collectively the Governments)
the Relator hereby upon the Order of the Court herein
Dismisses all claims for relief and causes of action filed in the above-
captioned action against Defendants SCAN HEALTH PLAN SENIOR CARE
ACTION NETWORK and SCAN GROUP said dismissal being (a) with
prejudice as to the Relator (b) without prejudice to the United States of America as
to the Ninth Claim for Relief of the Third Amended Complaint and (c) with
prejudice to the Governments as to all other claims for relief and causes of action in
all Complaints filed in the above-captioned action against Defendants SCAN
HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP to
the extent that those claims for relief and causes of action are or purport to be filed
pursuant to the False Claims Act 31 USC sect 3729 et seq and the California False
Claims Act California Government Codesect 12650 et seq
Except that the Relator does not dismiss the Relators claim for a relators
share to be paid by the Governments pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(2) As to this claim the Relator
respectfully requests that the Court retain jurisdiction to determine if necessary the
relators share that the Relator should obtain pursuant to 31 USC sect 3730( d)(l) and
California Government Codesect 12652(g)(2) and
Except that the Relator does not dismiss the Relators claim for payment by
any and all of the SCAN Defendants to the Relator of expenses fees and costs
pursuant to 31 USC sect 3730(d)(l) and California Government Code
sect 12652(g)(8) As to this claim the Relator respectfully requests that the Court
retain jurisdiction to determine if necessary the appropriate expenses fees and
25
costs that the Relator should obtain pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(8)
Respectfully submitted
DATED _____ 2012 WILLIAM HANAGAMI ESQ The Hanagami Law Firm
ABRAM J ZINBERG ESQ Attorney at Law
WILLIAM HANAGAMI ESQ Attorneys for Relator JAMES M SWOBEN
26
CONSENT OF THE ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA
Pursuant to 31 USC sect 3730(b )(1) the Attorney General of the United
States of America by and through the undersigned consents to the foregoing
dismissal The reason for the consent of the Attorney General is that the dismissal
is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED _____ 2012 ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section
JOHN E LEE Assistant United States Attorney
Attorneys for the UNITED STATES OF AMERICA
CONSENT OF THE ATTORNEY GENERAL
OF THE STATE OF CALIFORNIA
Pursuant to California Government Codesect 12652(c)(1) the Attorney
General of the State of California by and through the undersigned consents to the
foregoing dismissal The reason for the consent of the Attorney General is that the
dismissal is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED 2012 ---- shy KAMALA D HARRIS Attorney General of California BRIAN V FRANKEL Supervising Deputy Attorney General
LORA FOX MARTIN Deputy Attorney General
Attorneys for the STATE OF CALIFORNIA
IT IS SO ORDERED
This ____ day of _____ 2012
UNITED STATES DISTRICT JUDGE
28
DATED____ BY _______________ DAVID J SCHINDLER Latham amp Watk1ns Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
DATED_____ BY _______________________
ROGERS GOLDMAN Latham amp Watkins Counsel for SCAN Health Plan Senior Care Action Network and Scan Group
JAMES M SWOBEN- RELATOR
DATED9-() to1---BYbull ~~ JAMES M SWOBEN
(
Approved as to form and content
L ~ ~middotmiddotmiddot- BY middott I amp -middot-- - ____ DATED 1 5t I C ( vbull 7 1bull lr-~A7AGAJ11 The Hanagami Law Firm A Professional Corporation Counsel for James M Swoben
DATED______ BY ABRAM J ZINBERG Counsel for James M Swoben
19
Exhibit 1
20
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 90012 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel [UNDER SEAL] ) NOTICE OF [SEALED] AND
) [PROPOSED]ORDERTHEREON Plaintiffs )
) [LODGED UNDER SEAL v ) pursuant to the False Claim Act
) 31 USC sect 3730(b)(2) and (3)] [UNDER SEAL] )
) [CAPTION ALSO MAY DESIGNATE (Caption continued on next page) ) OTHER DOCUMENTS FILED OR
) LODGED CONCURRENTLY]
21
Defendants )
22
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 900 12 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel ) JAMES M SWOBEN ) NOTICE OF DISMISSAL OF ALL
Plaintiffs ) CLAIMS AGAINST DEFENDANTS v ) SCAN HEALTH PLAN SENIOR
SCAN HEALTH PLAN a California ) CARE ACTION NETWORK AND corporation fka SENIOR CARE ) SCAN GROUP PURSUANT TO ACTION NETWORK SENIOR CARE ) SETTLEMENT AGREEMENT ACTION NETWORK a business entity) CONSENTS OF THE UNITED (Caption continued on next page) ) STATES AND STATE OF form unknown SCAN GROUP a ) CALIFORNIA ATTORNEYS
23
California corporation [NAMES OF ) GENERAL THERETO AND REMAINING DEFENDANTS ) [PROPOSED]ORDERTHEREON SEALED] )
Defendants ) [LODGED UNDER SEAL ) pursuant to the False Claim Act
31 USC sect 3730(b)(2) and (3)]
[CAPTION ALSO MAY DESIGNATE OTHER DOCUMENTS FILED OR LODGED CONCURRENTLY]
Pursuant to Rule 4l(a) of the Federal Rules of Civil Procedure and subject to
and in order to effectuate the settlement agreement among
the Relator James M Swoben (Relator) Defendants SCAN Health Plan
Senior Care Action Network and SCAN Group (collectively the SCAN
Defendants) and the United States of America and the State of California
(collectively the Governments)
the Relator hereby upon the Order of the Court herein
Dismisses all claims for relief and causes of action filed in the above-
captioned action against Defendants SCAN HEALTH PLAN SENIOR CARE
ACTION NETWORK and SCAN GROUP said dismissal being (a) with
prejudice as to the Relator (b) without prejudice to the United States of America as
to the Ninth Claim for Relief of the Third Amended Complaint and (c) with
prejudice to the Governments as to all other claims for relief and causes of action in
all Complaints filed in the above-captioned action against Defendants SCAN
HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP to
the extent that those claims for relief and causes of action are or purport to be filed
pursuant to the False Claims Act 31 USC sect 3729 et seq and the California False
Claims Act California Government Codesect 12650 et seq
Except that the Relator does not dismiss the Relators claim for a relators
share to be paid by the Governments pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(2) As to this claim the Relator
respectfully requests that the Court retain jurisdiction to determine if necessary the
relators share that the Relator should obtain pursuant to 31 USC sect 3730( d)(l) and
California Government Codesect 12652(g)(2) and
Except that the Relator does not dismiss the Relators claim for payment by
any and all of the SCAN Defendants to the Relator of expenses fees and costs
pursuant to 31 USC sect 3730(d)(l) and California Government Code
sect 12652(g)(8) As to this claim the Relator respectfully requests that the Court
retain jurisdiction to determine if necessary the appropriate expenses fees and
25
costs that the Relator should obtain pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(8)
Respectfully submitted
DATED _____ 2012 WILLIAM HANAGAMI ESQ The Hanagami Law Firm
ABRAM J ZINBERG ESQ Attorney at Law
WILLIAM HANAGAMI ESQ Attorneys for Relator JAMES M SWOBEN
26
CONSENT OF THE ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA
Pursuant to 31 USC sect 3730(b )(1) the Attorney General of the United
States of America by and through the undersigned consents to the foregoing
dismissal The reason for the consent of the Attorney General is that the dismissal
is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED _____ 2012 ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section
JOHN E LEE Assistant United States Attorney
Attorneys for the UNITED STATES OF AMERICA
CONSENT OF THE ATTORNEY GENERAL
OF THE STATE OF CALIFORNIA
Pursuant to California Government Codesect 12652(c)(1) the Attorney
General of the State of California by and through the undersigned consents to the
foregoing dismissal The reason for the consent of the Attorney General is that the
dismissal is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED 2012 ---- shy KAMALA D HARRIS Attorney General of California BRIAN V FRANKEL Supervising Deputy Attorney General
LORA FOX MARTIN Deputy Attorney General
Attorneys for the STATE OF CALIFORNIA
IT IS SO ORDERED
This ____ day of _____ 2012
UNITED STATES DISTRICT JUDGE
28
Exhibit 1
20
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 90012 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel [UNDER SEAL] ) NOTICE OF [SEALED] AND
) [PROPOSED]ORDERTHEREON Plaintiffs )
) [LODGED UNDER SEAL v ) pursuant to the False Claim Act
) 31 USC sect 3730(b)(2) and (3)] [UNDER SEAL] )
) [CAPTION ALSO MAY DESIGNATE (Caption continued on next page) ) OTHER DOCUMENTS FILED OR
) LODGED CONCURRENTLY]
21
Defendants )
22
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 900 12 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel ) JAMES M SWOBEN ) NOTICE OF DISMISSAL OF ALL
Plaintiffs ) CLAIMS AGAINST DEFENDANTS v ) SCAN HEALTH PLAN SENIOR
SCAN HEALTH PLAN a California ) CARE ACTION NETWORK AND corporation fka SENIOR CARE ) SCAN GROUP PURSUANT TO ACTION NETWORK SENIOR CARE ) SETTLEMENT AGREEMENT ACTION NETWORK a business entity) CONSENTS OF THE UNITED (Caption continued on next page) ) STATES AND STATE OF form unknown SCAN GROUP a ) CALIFORNIA ATTORNEYS
23
California corporation [NAMES OF ) GENERAL THERETO AND REMAINING DEFENDANTS ) [PROPOSED]ORDERTHEREON SEALED] )
Defendants ) [LODGED UNDER SEAL ) pursuant to the False Claim Act
31 USC sect 3730(b)(2) and (3)]
[CAPTION ALSO MAY DESIGNATE OTHER DOCUMENTS FILED OR LODGED CONCURRENTLY]
Pursuant to Rule 4l(a) of the Federal Rules of Civil Procedure and subject to
and in order to effectuate the settlement agreement among
the Relator James M Swoben (Relator) Defendants SCAN Health Plan
Senior Care Action Network and SCAN Group (collectively the SCAN
Defendants) and the United States of America and the State of California
(collectively the Governments)
the Relator hereby upon the Order of the Court herein
Dismisses all claims for relief and causes of action filed in the above-
captioned action against Defendants SCAN HEALTH PLAN SENIOR CARE
ACTION NETWORK and SCAN GROUP said dismissal being (a) with
prejudice as to the Relator (b) without prejudice to the United States of America as
to the Ninth Claim for Relief of the Third Amended Complaint and (c) with
prejudice to the Governments as to all other claims for relief and causes of action in
all Complaints filed in the above-captioned action against Defendants SCAN
HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP to
the extent that those claims for relief and causes of action are or purport to be filed
pursuant to the False Claims Act 31 USC sect 3729 et seq and the California False
Claims Act California Government Codesect 12650 et seq
Except that the Relator does not dismiss the Relators claim for a relators
share to be paid by the Governments pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(2) As to this claim the Relator
respectfully requests that the Court retain jurisdiction to determine if necessary the
relators share that the Relator should obtain pursuant to 31 USC sect 3730( d)(l) and
California Government Codesect 12652(g)(2) and
Except that the Relator does not dismiss the Relators claim for payment by
any and all of the SCAN Defendants to the Relator of expenses fees and costs
pursuant to 31 USC sect 3730(d)(l) and California Government Code
sect 12652(g)(8) As to this claim the Relator respectfully requests that the Court
retain jurisdiction to determine if necessary the appropriate expenses fees and
25
costs that the Relator should obtain pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(8)
Respectfully submitted
DATED _____ 2012 WILLIAM HANAGAMI ESQ The Hanagami Law Firm
ABRAM J ZINBERG ESQ Attorney at Law
WILLIAM HANAGAMI ESQ Attorneys for Relator JAMES M SWOBEN
26
CONSENT OF THE ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA
Pursuant to 31 USC sect 3730(b )(1) the Attorney General of the United
States of America by and through the undersigned consents to the foregoing
dismissal The reason for the consent of the Attorney General is that the dismissal
is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED _____ 2012 ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section
JOHN E LEE Assistant United States Attorney
Attorneys for the UNITED STATES OF AMERICA
CONSENT OF THE ATTORNEY GENERAL
OF THE STATE OF CALIFORNIA
Pursuant to California Government Codesect 12652(c)(1) the Attorney
General of the State of California by and through the undersigned consents to the
foregoing dismissal The reason for the consent of the Attorney General is that the
dismissal is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED 2012 ---- shy KAMALA D HARRIS Attorney General of California BRIAN V FRANKEL Supervising Deputy Attorney General
LORA FOX MARTIN Deputy Attorney General
Attorneys for the STATE OF CALIFORNIA
IT IS SO ORDERED
This ____ day of _____ 2012
UNITED STATES DISTRICT JUDGE
28
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 90012 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel [UNDER SEAL] ) NOTICE OF [SEALED] AND
) [PROPOSED]ORDERTHEREON Plaintiffs )
) [LODGED UNDER SEAL v ) pursuant to the False Claim Act
) 31 USC sect 3730(b)(2) and (3)] [UNDER SEAL] )
) [CAPTION ALSO MAY DESIGNATE (Caption continued on next page) ) OTHER DOCUMENTS FILED OR
) LODGED CONCURRENTLY]
21
Defendants )
22
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 900 12 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel ) JAMES M SWOBEN ) NOTICE OF DISMISSAL OF ALL
Plaintiffs ) CLAIMS AGAINST DEFENDANTS v ) SCAN HEALTH PLAN SENIOR
SCAN HEALTH PLAN a California ) CARE ACTION NETWORK AND corporation fka SENIOR CARE ) SCAN GROUP PURSUANT TO ACTION NETWORK SENIOR CARE ) SETTLEMENT AGREEMENT ACTION NETWORK a business entity) CONSENTS OF THE UNITED (Caption continued on next page) ) STATES AND STATE OF form unknown SCAN GROUP a ) CALIFORNIA ATTORNEYS
23
California corporation [NAMES OF ) GENERAL THERETO AND REMAINING DEFENDANTS ) [PROPOSED]ORDERTHEREON SEALED] )
Defendants ) [LODGED UNDER SEAL ) pursuant to the False Claim Act
31 USC sect 3730(b)(2) and (3)]
[CAPTION ALSO MAY DESIGNATE OTHER DOCUMENTS FILED OR LODGED CONCURRENTLY]
Pursuant to Rule 4l(a) of the Federal Rules of Civil Procedure and subject to
and in order to effectuate the settlement agreement among
the Relator James M Swoben (Relator) Defendants SCAN Health Plan
Senior Care Action Network and SCAN Group (collectively the SCAN
Defendants) and the United States of America and the State of California
(collectively the Governments)
the Relator hereby upon the Order of the Court herein
Dismisses all claims for relief and causes of action filed in the above-
captioned action against Defendants SCAN HEALTH PLAN SENIOR CARE
ACTION NETWORK and SCAN GROUP said dismissal being (a) with
prejudice as to the Relator (b) without prejudice to the United States of America as
to the Ninth Claim for Relief of the Third Amended Complaint and (c) with
prejudice to the Governments as to all other claims for relief and causes of action in
all Complaints filed in the above-captioned action against Defendants SCAN
HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP to
the extent that those claims for relief and causes of action are or purport to be filed
pursuant to the False Claims Act 31 USC sect 3729 et seq and the California False
Claims Act California Government Codesect 12650 et seq
Except that the Relator does not dismiss the Relators claim for a relators
share to be paid by the Governments pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(2) As to this claim the Relator
respectfully requests that the Court retain jurisdiction to determine if necessary the
relators share that the Relator should obtain pursuant to 31 USC sect 3730( d)(l) and
California Government Codesect 12652(g)(2) and
Except that the Relator does not dismiss the Relators claim for payment by
any and all of the SCAN Defendants to the Relator of expenses fees and costs
pursuant to 31 USC sect 3730(d)(l) and California Government Code
sect 12652(g)(8) As to this claim the Relator respectfully requests that the Court
retain jurisdiction to determine if necessary the appropriate expenses fees and
25
costs that the Relator should obtain pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(8)
Respectfully submitted
DATED _____ 2012 WILLIAM HANAGAMI ESQ The Hanagami Law Firm
ABRAM J ZINBERG ESQ Attorney at Law
WILLIAM HANAGAMI ESQ Attorneys for Relator JAMES M SWOBEN
26
CONSENT OF THE ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA
Pursuant to 31 USC sect 3730(b )(1) the Attorney General of the United
States of America by and through the undersigned consents to the foregoing
dismissal The reason for the consent of the Attorney General is that the dismissal
is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED _____ 2012 ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section
JOHN E LEE Assistant United States Attorney
Attorneys for the UNITED STATES OF AMERICA
CONSENT OF THE ATTORNEY GENERAL
OF THE STATE OF CALIFORNIA
Pursuant to California Government Codesect 12652(c)(1) the Attorney
General of the State of California by and through the undersigned consents to the
foregoing dismissal The reason for the consent of the Attorney General is that the
dismissal is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED 2012 ---- shy KAMALA D HARRIS Attorney General of California BRIAN V FRANKEL Supervising Deputy Attorney General
LORA FOX MARTIN Deputy Attorney General
Attorneys for the STATE OF CALIFORNIA
IT IS SO ORDERED
This ____ day of _____ 2012
UNITED STATES DISTRICT JUDGE
28
Defendants )
22
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 900 12 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel ) JAMES M SWOBEN ) NOTICE OF DISMISSAL OF ALL
Plaintiffs ) CLAIMS AGAINST DEFENDANTS v ) SCAN HEALTH PLAN SENIOR
SCAN HEALTH PLAN a California ) CARE ACTION NETWORK AND corporation fka SENIOR CARE ) SCAN GROUP PURSUANT TO ACTION NETWORK SENIOR CARE ) SETTLEMENT AGREEMENT ACTION NETWORK a business entity) CONSENTS OF THE UNITED (Caption continued on next page) ) STATES AND STATE OF form unknown SCAN GROUP a ) CALIFORNIA ATTORNEYS
23
California corporation [NAMES OF ) GENERAL THERETO AND REMAINING DEFENDANTS ) [PROPOSED]ORDERTHEREON SEALED] )
Defendants ) [LODGED UNDER SEAL ) pursuant to the False Claim Act
31 USC sect 3730(b)(2) and (3)]
[CAPTION ALSO MAY DESIGNATE OTHER DOCUMENTS FILED OR LODGED CONCURRENTLY]
Pursuant to Rule 4l(a) of the Federal Rules of Civil Procedure and subject to
and in order to effectuate the settlement agreement among
the Relator James M Swoben (Relator) Defendants SCAN Health Plan
Senior Care Action Network and SCAN Group (collectively the SCAN
Defendants) and the United States of America and the State of California
(collectively the Governments)
the Relator hereby upon the Order of the Court herein
Dismisses all claims for relief and causes of action filed in the above-
captioned action against Defendants SCAN HEALTH PLAN SENIOR CARE
ACTION NETWORK and SCAN GROUP said dismissal being (a) with
prejudice as to the Relator (b) without prejudice to the United States of America as
to the Ninth Claim for Relief of the Third Amended Complaint and (c) with
prejudice to the Governments as to all other claims for relief and causes of action in
all Complaints filed in the above-captioned action against Defendants SCAN
HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP to
the extent that those claims for relief and causes of action are or purport to be filed
pursuant to the False Claims Act 31 USC sect 3729 et seq and the California False
Claims Act California Government Codesect 12650 et seq
Except that the Relator does not dismiss the Relators claim for a relators
share to be paid by the Governments pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(2) As to this claim the Relator
respectfully requests that the Court retain jurisdiction to determine if necessary the
relators share that the Relator should obtain pursuant to 31 USC sect 3730( d)(l) and
California Government Codesect 12652(g)(2) and
Except that the Relator does not dismiss the Relators claim for payment by
any and all of the SCAN Defendants to the Relator of expenses fees and costs
pursuant to 31 USC sect 3730(d)(l) and California Government Code
sect 12652(g)(8) As to this claim the Relator respectfully requests that the Court
retain jurisdiction to determine if necessary the appropriate expenses fees and
25
costs that the Relator should obtain pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(8)
Respectfully submitted
DATED _____ 2012 WILLIAM HANAGAMI ESQ The Hanagami Law Firm
ABRAM J ZINBERG ESQ Attorney at Law
WILLIAM HANAGAMI ESQ Attorneys for Relator JAMES M SWOBEN
26
CONSENT OF THE ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA
Pursuant to 31 USC sect 3730(b )(1) the Attorney General of the United
States of America by and through the undersigned consents to the foregoing
dismissal The reason for the consent of the Attorney General is that the dismissal
is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED _____ 2012 ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section
JOHN E LEE Assistant United States Attorney
Attorneys for the UNITED STATES OF AMERICA
CONSENT OF THE ATTORNEY GENERAL
OF THE STATE OF CALIFORNIA
Pursuant to California Government Codesect 12652(c)(1) the Attorney
General of the State of California by and through the undersigned consents to the
foregoing dismissal The reason for the consent of the Attorney General is that the
dismissal is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED 2012 ---- shy KAMALA D HARRIS Attorney General of California BRIAN V FRANKEL Supervising Deputy Attorney General
LORA FOX MARTIN Deputy Attorney General
Attorneys for the STATE OF CALIFORNIA
IT IS SO ORDERED
This ____ day of _____ 2012
UNITED STATES DISTRICT JUDGE
28
ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section JOHN E LEE (CBN 128696) Assistant United States Attorneys
Room 7516 Federal Building 300 North Los Angeles Street Los Angeles California 900 12 Telephone (213) 894-3995 Facsimile (213) 894-2380 E-mail johnlee2usdojgov
Attorneys for the UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA and ) NO CV 09-5013 JFW (JEMx) STATE OF CALIFORNIA ex rel ) JAMES M SWOBEN ) NOTICE OF DISMISSAL OF ALL
Plaintiffs ) CLAIMS AGAINST DEFENDANTS v ) SCAN HEALTH PLAN SENIOR
SCAN HEALTH PLAN a California ) CARE ACTION NETWORK AND corporation fka SENIOR CARE ) SCAN GROUP PURSUANT TO ACTION NETWORK SENIOR CARE ) SETTLEMENT AGREEMENT ACTION NETWORK a business entity) CONSENTS OF THE UNITED (Caption continued on next page) ) STATES AND STATE OF form unknown SCAN GROUP a ) CALIFORNIA ATTORNEYS
23
California corporation [NAMES OF ) GENERAL THERETO AND REMAINING DEFENDANTS ) [PROPOSED]ORDERTHEREON SEALED] )
Defendants ) [LODGED UNDER SEAL ) pursuant to the False Claim Act
31 USC sect 3730(b)(2) and (3)]
[CAPTION ALSO MAY DESIGNATE OTHER DOCUMENTS FILED OR LODGED CONCURRENTLY]
Pursuant to Rule 4l(a) of the Federal Rules of Civil Procedure and subject to
and in order to effectuate the settlement agreement among
the Relator James M Swoben (Relator) Defendants SCAN Health Plan
Senior Care Action Network and SCAN Group (collectively the SCAN
Defendants) and the United States of America and the State of California
(collectively the Governments)
the Relator hereby upon the Order of the Court herein
Dismisses all claims for relief and causes of action filed in the above-
captioned action against Defendants SCAN HEALTH PLAN SENIOR CARE
ACTION NETWORK and SCAN GROUP said dismissal being (a) with
prejudice as to the Relator (b) without prejudice to the United States of America as
to the Ninth Claim for Relief of the Third Amended Complaint and (c) with
prejudice to the Governments as to all other claims for relief and causes of action in
all Complaints filed in the above-captioned action against Defendants SCAN
HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP to
the extent that those claims for relief and causes of action are or purport to be filed
pursuant to the False Claims Act 31 USC sect 3729 et seq and the California False
Claims Act California Government Codesect 12650 et seq
Except that the Relator does not dismiss the Relators claim for a relators
share to be paid by the Governments pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(2) As to this claim the Relator
respectfully requests that the Court retain jurisdiction to determine if necessary the
relators share that the Relator should obtain pursuant to 31 USC sect 3730( d)(l) and
California Government Codesect 12652(g)(2) and
Except that the Relator does not dismiss the Relators claim for payment by
any and all of the SCAN Defendants to the Relator of expenses fees and costs
pursuant to 31 USC sect 3730(d)(l) and California Government Code
sect 12652(g)(8) As to this claim the Relator respectfully requests that the Court
retain jurisdiction to determine if necessary the appropriate expenses fees and
25
costs that the Relator should obtain pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(8)
Respectfully submitted
DATED _____ 2012 WILLIAM HANAGAMI ESQ The Hanagami Law Firm
ABRAM J ZINBERG ESQ Attorney at Law
WILLIAM HANAGAMI ESQ Attorneys for Relator JAMES M SWOBEN
26
CONSENT OF THE ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA
Pursuant to 31 USC sect 3730(b )(1) the Attorney General of the United
States of America by and through the undersigned consents to the foregoing
dismissal The reason for the consent of the Attorney General is that the dismissal
is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED _____ 2012 ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section
JOHN E LEE Assistant United States Attorney
Attorneys for the UNITED STATES OF AMERICA
CONSENT OF THE ATTORNEY GENERAL
OF THE STATE OF CALIFORNIA
Pursuant to California Government Codesect 12652(c)(1) the Attorney
General of the State of California by and through the undersigned consents to the
foregoing dismissal The reason for the consent of the Attorney General is that the
dismissal is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED 2012 ---- shy KAMALA D HARRIS Attorney General of California BRIAN V FRANKEL Supervising Deputy Attorney General
LORA FOX MARTIN Deputy Attorney General
Attorneys for the STATE OF CALIFORNIA
IT IS SO ORDERED
This ____ day of _____ 2012
UNITED STATES DISTRICT JUDGE
28
California corporation [NAMES OF ) GENERAL THERETO AND REMAINING DEFENDANTS ) [PROPOSED]ORDERTHEREON SEALED] )
Defendants ) [LODGED UNDER SEAL ) pursuant to the False Claim Act
31 USC sect 3730(b)(2) and (3)]
[CAPTION ALSO MAY DESIGNATE OTHER DOCUMENTS FILED OR LODGED CONCURRENTLY]
Pursuant to Rule 4l(a) of the Federal Rules of Civil Procedure and subject to
and in order to effectuate the settlement agreement among
the Relator James M Swoben (Relator) Defendants SCAN Health Plan
Senior Care Action Network and SCAN Group (collectively the SCAN
Defendants) and the United States of America and the State of California
(collectively the Governments)
the Relator hereby upon the Order of the Court herein
Dismisses all claims for relief and causes of action filed in the above-
captioned action against Defendants SCAN HEALTH PLAN SENIOR CARE
ACTION NETWORK and SCAN GROUP said dismissal being (a) with
prejudice as to the Relator (b) without prejudice to the United States of America as
to the Ninth Claim for Relief of the Third Amended Complaint and (c) with
prejudice to the Governments as to all other claims for relief and causes of action in
all Complaints filed in the above-captioned action against Defendants SCAN
HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP to
the extent that those claims for relief and causes of action are or purport to be filed
pursuant to the False Claims Act 31 USC sect 3729 et seq and the California False
Claims Act California Government Codesect 12650 et seq
Except that the Relator does not dismiss the Relators claim for a relators
share to be paid by the Governments pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(2) As to this claim the Relator
respectfully requests that the Court retain jurisdiction to determine if necessary the
relators share that the Relator should obtain pursuant to 31 USC sect 3730( d)(l) and
California Government Codesect 12652(g)(2) and
Except that the Relator does not dismiss the Relators claim for payment by
any and all of the SCAN Defendants to the Relator of expenses fees and costs
pursuant to 31 USC sect 3730(d)(l) and California Government Code
sect 12652(g)(8) As to this claim the Relator respectfully requests that the Court
retain jurisdiction to determine if necessary the appropriate expenses fees and
25
costs that the Relator should obtain pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(8)
Respectfully submitted
DATED _____ 2012 WILLIAM HANAGAMI ESQ The Hanagami Law Firm
ABRAM J ZINBERG ESQ Attorney at Law
WILLIAM HANAGAMI ESQ Attorneys for Relator JAMES M SWOBEN
26
CONSENT OF THE ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA
Pursuant to 31 USC sect 3730(b )(1) the Attorney General of the United
States of America by and through the undersigned consents to the foregoing
dismissal The reason for the consent of the Attorney General is that the dismissal
is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED _____ 2012 ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section
JOHN E LEE Assistant United States Attorney
Attorneys for the UNITED STATES OF AMERICA
CONSENT OF THE ATTORNEY GENERAL
OF THE STATE OF CALIFORNIA
Pursuant to California Government Codesect 12652(c)(1) the Attorney
General of the State of California by and through the undersigned consents to the
foregoing dismissal The reason for the consent of the Attorney General is that the
dismissal is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED 2012 ---- shy KAMALA D HARRIS Attorney General of California BRIAN V FRANKEL Supervising Deputy Attorney General
LORA FOX MARTIN Deputy Attorney General
Attorneys for the STATE OF CALIFORNIA
IT IS SO ORDERED
This ____ day of _____ 2012
UNITED STATES DISTRICT JUDGE
28
all Complaints filed in the above-captioned action against Defendants SCAN
HEALTH PLAN SENIOR CARE ACTION NETWORK and SCAN GROUP to
the extent that those claims for relief and causes of action are or purport to be filed
pursuant to the False Claims Act 31 USC sect 3729 et seq and the California False
Claims Act California Government Codesect 12650 et seq
Except that the Relator does not dismiss the Relators claim for a relators
share to be paid by the Governments pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(2) As to this claim the Relator
respectfully requests that the Court retain jurisdiction to determine if necessary the
relators share that the Relator should obtain pursuant to 31 USC sect 3730( d)(l) and
California Government Codesect 12652(g)(2) and
Except that the Relator does not dismiss the Relators claim for payment by
any and all of the SCAN Defendants to the Relator of expenses fees and costs
pursuant to 31 USC sect 3730(d)(l) and California Government Code
sect 12652(g)(8) As to this claim the Relator respectfully requests that the Court
retain jurisdiction to determine if necessary the appropriate expenses fees and
25
costs that the Relator should obtain pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(8)
Respectfully submitted
DATED _____ 2012 WILLIAM HANAGAMI ESQ The Hanagami Law Firm
ABRAM J ZINBERG ESQ Attorney at Law
WILLIAM HANAGAMI ESQ Attorneys for Relator JAMES M SWOBEN
26
CONSENT OF THE ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA
Pursuant to 31 USC sect 3730(b )(1) the Attorney General of the United
States of America by and through the undersigned consents to the foregoing
dismissal The reason for the consent of the Attorney General is that the dismissal
is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED _____ 2012 ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section
JOHN E LEE Assistant United States Attorney
Attorneys for the UNITED STATES OF AMERICA
CONSENT OF THE ATTORNEY GENERAL
OF THE STATE OF CALIFORNIA
Pursuant to California Government Codesect 12652(c)(1) the Attorney
General of the State of California by and through the undersigned consents to the
foregoing dismissal The reason for the consent of the Attorney General is that the
dismissal is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED 2012 ---- shy KAMALA D HARRIS Attorney General of California BRIAN V FRANKEL Supervising Deputy Attorney General
LORA FOX MARTIN Deputy Attorney General
Attorneys for the STATE OF CALIFORNIA
IT IS SO ORDERED
This ____ day of _____ 2012
UNITED STATES DISTRICT JUDGE
28
costs that the Relator should obtain pursuant to 31 USC sect 3730(d)(l) and
California Government Codesect 12652(g)(8)
Respectfully submitted
DATED _____ 2012 WILLIAM HANAGAMI ESQ The Hanagami Law Firm
ABRAM J ZINBERG ESQ Attorney at Law
WILLIAM HANAGAMI ESQ Attorneys for Relator JAMES M SWOBEN
26
CONSENT OF THE ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA
Pursuant to 31 USC sect 3730(b )(1) the Attorney General of the United
States of America by and through the undersigned consents to the foregoing
dismissal The reason for the consent of the Attorney General is that the dismissal
is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED _____ 2012 ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section
JOHN E LEE Assistant United States Attorney
Attorneys for the UNITED STATES OF AMERICA
CONSENT OF THE ATTORNEY GENERAL
OF THE STATE OF CALIFORNIA
Pursuant to California Government Codesect 12652(c)(1) the Attorney
General of the State of California by and through the undersigned consents to the
foregoing dismissal The reason for the consent of the Attorney General is that the
dismissal is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED 2012 ---- shy KAMALA D HARRIS Attorney General of California BRIAN V FRANKEL Supervising Deputy Attorney General
LORA FOX MARTIN Deputy Attorney General
Attorneys for the STATE OF CALIFORNIA
IT IS SO ORDERED
This ____ day of _____ 2012
UNITED STATES DISTRICT JUDGE
28
CONSENT OF THE ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA
Pursuant to 31 USC sect 3730(b )(1) the Attorney General of the United
States of America by and through the undersigned consents to the foregoing
dismissal The reason for the consent of the Attorney General is that the dismissal
is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED _____ 2012 ANDRE BIROTTE JR United States Attorney LEON W WEIDMAN Chief Civil Division WENDY L WEISS Chief Civil Fraud Section SUSAN R HERSHMAN Deputy Chief Civil Fraud Section
JOHN E LEE Assistant United States Attorney
Attorneys for the UNITED STATES OF AMERICA
CONSENT OF THE ATTORNEY GENERAL
OF THE STATE OF CALIFORNIA
Pursuant to California Government Codesect 12652(c)(1) the Attorney
General of the State of California by and through the undersigned consents to the
foregoing dismissal The reason for the consent of the Attorney General is that the
dismissal is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED 2012 ---- shy KAMALA D HARRIS Attorney General of California BRIAN V FRANKEL Supervising Deputy Attorney General
LORA FOX MARTIN Deputy Attorney General
Attorneys for the STATE OF CALIFORNIA
IT IS SO ORDERED
This ____ day of _____ 2012
UNITED STATES DISTRICT JUDGE
28
CONSENT OF THE ATTORNEY GENERAL
OF THE STATE OF CALIFORNIA
Pursuant to California Government Codesect 12652(c)(1) the Attorney
General of the State of California by and through the undersigned consents to the
foregoing dismissal The reason for the consent of the Attorney General is that the
dismissal is pursuant to a settlement that is fair adequate and reasonable
Respectfully submitted
DATED 2012 ---- shy KAMALA D HARRIS Attorney General of California BRIAN V FRANKEL Supervising Deputy Attorney General
LORA FOX MARTIN Deputy Attorney General
Attorneys for the STATE OF CALIFORNIA
IT IS SO ORDERED
This ____ day of _____ 2012
UNITED STATES DISTRICT JUDGE
28